Last Updated: March 31st, 2014
THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND COMPANY, AND YOU SHOULD READ AND BE SURE YOU UNDERSTAND THEM BEFORE USING THE SERVICE. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICE.
1.1 Description. The Service is offered by Company to enable users (“Users”) to stay up-to-date on news and information about your favorite celebrities and the entertainment industry. The Company has developed the Service for your benefit, and we hope you will take full advantage of all it has to offer.
1.2 Eligibility; Subscribing Entities. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY COMPANY. In order to use the Service, you must either be 18 years of age or possess parental or guardian consent, and you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and to abide by and comply with these Terms. If you are under 18 years of age, by using the Service you certify that your parent or guardian has consented to your use of the Service and to these Terms on your behalf, and you acknowledge and agree that your use of the Service is at their discretion. Until you are 18 years old, your parent or guardian may ask us to modify, deny access to, or terminate your account and we may do so at their request or at any time, for any reason, without notice and liability. If you are using or opening an account on the Service on behalf of a company, entity or organization (each a “Subscribing Entity”), then you represent and warrant that you: (a) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such Subscribing Entity.
1.3 Changes to These Terms. Company reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Websites. Revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. Your continued use of the Service after a revised version of these Terms has been posted by Company constitutes your binding acceptance of the revised Terms. Notwithstanding the preceding sentences of this Section 1.3, no revisions to these Terms will apply to any dispute between you and Company that arose prior to the date of such revision.
1.4 Evolving Nature of Service. The Service is continually evolving and changes to the Service may be made at any time. If you don’t like the Service or in any way disagree with these Terms, we hope you will let us know and give us constructive feedback. You may alert us by directing your inquiry through our contact page to Privacy Department at any time. However, your only remedy in the event you are dissatisfied with the Service or these Terms is to discontinue your use of the Service.
1.5 Consideration. The Service is currently offered for free, although we may offer downloads of music or other media content for sale. You understand and agree that these Terms are entered into in consideration of your use of the Service and for other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge.
1.6 Communications Between You and Company. We occasionally may have a need to communicate with you. You hereby authorize Company to communicate with you via e-mail for any matter related to the Service. With respect to promotional opportunities and certain other communications, you will be given the opportunity to opt out of receiving such communications, however, you hereby grant Company permission to communicate with you via e-mail about your use of the Service, changes to these Terms, or your rights and obligations under these Terms. You will be responsible for any fees incurred by you in receiving any communications from Company.
3. USE OF THE SERVICE
(3.2.a) Accuracy of Information. In becoming a User, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by Company. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate.
(3.2.b) Log In Credentials. In order to register as a User, you will have to provide your e-mail address and create a username and password. You may also register through a third party social network, such as Facebook. You are responsible for maintaining the security of your log in credentials in order to use the Service, and are fully responsible for all activities that occur through the use of your credentials by you or anyone authorized by you. You agree to notify Company immediately by directing your inquiry through our contact page to Privacy Department if you suspect or know of any unauthorized use of your log in credentials or any other breach of security with respect to your account. Company will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Company of such unauthorized use or loss of your credentials. Separate log in credentials may be required for Third Party Sites by the owners and/or operators of such sites or services.
3.3 Rejection of User Names. Company reserves the right to reject or revoke at any time the right of any User to use any name as part of a user name on the Service, without any liability to you. We need this right to ensure the integrity of the Service and the rights of other Users of the Service.
4. SERVICE SECURITY
You may not violate, or attempt to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Company’s sole discretion. Company reserves the right to investigate any alleged or suspected violations and, if a criminal violation or other anticipated harm is reasonably anticipated to the Service, Company or any Users, refer such suspected violations or concerns to the appropriate law enforcement and governmental agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service. You hereby consent to Company’s making such disclosures if Company has a reasonable basis for doing so.
5. MATERIALS COLLECTED ON THE SERVICE; LICENSE GRANT FROM YOU TO COMPANY
5.1 User Content. This Section 5 governs any material that Users upload, post or transmit (collectively, “Post”) to or through the Service or to us through e-mail, text message, or via any other means permitted by Company, including, by way of example and not limitation, literary works, photographs, audiovisual works, musical works, sound recordings, artwork, concepts, ideas, inventions, comments, messages, feedback, suggestions, and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, but specifically excluding Contributed Content and Messages (each as defined below) (collectively, “User Content”). You are solely responsible for securing the rights to any and all User Content you Post to or through the Service.
5.2 Retention of Intellectual Property Rights. YOU RETAIN ALL RIGHTS IN ANY USER CONTENT YOU POST TO THE SERVICE. BY POSTING USER CONTENT ON OR THROUGH THE SERVICE YOU ARE MERELY GRANTING COMPANY A LICENSE PURSUANT TO THESE TERMS.
5.4 Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
5.5 Representations and Warranties with Respect to User Content. By Posting User Content on or through the Service, you hereby represent and warrant to Company that (a) you have obtained all necessary rights, permissions, licenses, authorizations, and clearances to grant the licenses and rights set forth in these Terms with respect to such User Content, and (b) the Use of such User Content in any manner permitted by these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Company or any Third Party Site on or through which the Service is made available to pay any fees of any kind to any third party for the Use of any User Content.
6. CONTRIBUTED CONTENT
6.1 If you contribute editorial content (e.g., articles), press releases or are another website wishing to publish your content on the Service (collectively, such content is “Contributed Content” and you are a “Contributor”), you are subject to the Contributed Content Terms below. In the event there is a conflict between these Terms and the Contributed Content Terms, the Contributed Content Terms will govern.
7. PERSONAL PAGE; CONDUCT ON THE SERVICE
7.1 You will have the right to create a personal page (your “Profile”) on the Service. Users may edit their Profiles and share such Profiles with other Users of the Service. We may provide you with the ability to share, or not share, your e-mail address or other Personal Information with other Users through your Profile.
8. COMMUNITY; MESSAGES
8.1 General. Company may provide facilities through which Users may communicate with one another, such as via forums and commenting (collectively, the “Community”). Currently, any postings to the Community must be made via Disqus. Your participation in the Community is a privilege, not a right, and Company may terminate Community privileges of any User at any time and for any reason, without any liability to such User. While we invite you to express your thoughts and opinions in the Community, we don’t want obnoxious comments in the Community and you must respect your fellow Users. Harmful, obscene, or offensive communications are not welcome in the Community and Company reserves the right to monitor, edit, pre-screen, and remove any postings to the Community, although nothing herein requires Company to monitor, edit or remove any postings. If you find objectionable content in the Community, then please notify us by directing your inquiry through our contact page to Privacy Department.
8.2 Community Postings. You should exercise discretion, good sense, and sound judgment when participating in the Community. Think – and read twice – before you Post anything to the Community. Once something is Posted in the Community (e.g., a comment or a photo) it may live in perpetuity online, and comments Posted today could be highly embarrassing or damaging to your credibility or reputation in the future. You are solely responsible for the content of any User Content you Post to the Community. You must not Post any material to the Community that you consider to be confidential or proprietary. You agree that any Postings you make in the Community are deemed public communications and that no confidentiality shall be afforded such Postings. You hereby grant us an assignable, sublicensable, irrevocable license to Use your Postings to make them available on and through the Community; provided, however, that Company shall never be obligated to remove any of your User Content from the Community upon the termination of any other grant of rights in these Terms.
8.3 Removal of Community Postings. You may remove any of your comments Posted to the Community at any time by clicking the down arrow at the top right of your comment and selecting “delete;” provided, however, that the removal of a comment from the Community will not ensure the deletion of your comment from computer servers owned or operated by or on behalf of Company or the removal of your Postings from the files of any third parties who may have copied or further distributed your Postings. As such, your Postings may continue to be made publicly accessible indefinitely by such third parties, and Company shall have no liability for the continued availability of such Postings.
8.4 No Endorsement. Company does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any comments Posted to the Community. The opinions expressed in any Community are to be attributed solely to the person or entity that Posted such message. Any reliance you place on material or information set forth in the Community Posting will be at your own risk.
8.5 Messages. The Service may allow you to send messages (“Messages”) to other Users of the Service. Sending Messages is a privilege, not a right, and Company may terminate such privileges of any User at any time and for any reason, without any liability to such User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a User sends you an objectionable Message, please notify us by directing your inquiry through our contact page to Privacy Department. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree to take reasonable precautions in all interactions with other Users, particularly if you decide to communicate with another User offline or meet them in person. You agree that Company may monitor Messages for compliance with these Terms, and therefor, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as Company may deem appropriate in its sole discretion.
8.6 Community and Message Guidelines. Please be mindful of the User Content you Post to the Community or send in a Message. Starpulse reserves the right to (a) remove User Content or a Message and escalate to law enforcement if it perceives a genuine risk of physical harm, or a direct threat to public safety; (b) remove any promotion or encouragement of self-mutilation, eating disorders or drug abuse; (c) take action on any report of abusive behavior directed at individuals, including any cyber bullying; (d) remove any User Content or a Message attacking others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, medical condition, or any other protected category of any State of the United States; (e) remove any graphic content shared for sadistic pleasure; (f) impose limitations on the display of nudity, and (g) Post the Personal Information or include it in a Message of others without their consent. If you see something on the Service that you believe violates these Terms, please report it to us by directing your inquiry through our contact page to Privacy Department. Please remember that reporting User Content or a Message does not guarantee Company will remove it from the Service. The Service is comprised of diverse individuals and it is possible that something could be disagreeable or disturbing to you without meeting our criteria for removal. You may always choose to not view any User Content or Message that offends you.
9.1 Descriptions. Company may provide you with an opportunity to participate in giveaways or sweepstakes on the Service (collectively, “Giveaways”). No purchase is necessary to participate in any Giveaway. Giveaways are void where prohibited or restricted by law or where registration or bonding requirements exist. A Giveaway entry page will indicate the particular Giveaway sponsor and the start and end as indicated for the particular Giveaway.
9.2 Eligibility. Giveaways are open and offered only to legal residents of the United States, aged 18 years or older and at least the age of majority in their jurisdiction of residence. If you win a Giveaway, you may be required to provide proof of your eligibility for and compliance with such Giveaway as a condition to receipt of the applicable Prize (as defined below). Employees and their immediate families and/or household members of Company and its respective parent companies, affiliates, and subsidiaries are not eligible to enter any Giveaway. Only individuals are eligible to enter Giveaways.
9.4 Prizes. The prize(s), the approximate retail value of the prize(s), and the number of winners of prize(s) for a particular Giveaway (the “Prize”) will be displayed on the Giveaway’s entry page on the Service. Entries and Prizes are non-transferable. Prizes awarded may be subject to third-party terms and conditions. No substitutions are permitted, except that Company or the Giveaway’s sponsor, as applicable, reserves the right to substitute a Prize of equal or greater monetary value for any Prize displayed on the Giveaway’s entry page. The winner of a Giveaway (the “Winner”) will be responsible and liable for any federal, state, and local taxes on the value of their Prize as well as any other costs not specifically indicated to be paid by Company or Giveaway sponsor on the Giveaway’s entry page. Company and Giveaway sponsor have the right to withhold payment or awarding of as a Prize they believe reasonably necessary for legal compliance, including any tax regulations. You may have to provide a or taxpayer ID prior to the awarding of any Prize.
9.5 Winning. At the end of the entry period for each Giveaway, a random drawing will be conducted to determine the Winner. The number of eligible entrants will determine the odds of winning a Giveaway. The decisions of Company are final and binding in all matters relating to Giveaways. The Winner will be attempted to be notified via e-mail and/or telephone, as determined by Company or the applicable Giveaway sponsor. If a potential Winner is (a) found to be ineligible, (b) in violation of these Terms or (c) unable to be reached after Company’s reasonable efforts, an alternate Winner may be selected from the pool of eligible Entries. A Winner may be required to execute and return to Company within five business days from notification by Company an affidavit of eligibility and a liability and publicity release to be eligible for the Prize or an alternate Winner will be selected. Company may choose to select no more than one alternate Winner and, in the event that the alternative Winner cannot be confirmed as a Winner then no Prize may be selected. Winner may be required to furnish proof of identity, address, and birth date in order to receive a Prize. By entering or accepting a Prize, all Winners agree to be bound by these Terms and to conform to all federal, state, and local laws and regulations.
9.6 Disclaimer and Release. Company will not be liable for (a) failed, returned, or misdirected notifications; (b) Entries, and responses to winner notifications that are lost, late, incomplete, illegible, unintelligible, postage-due, misdirected, damaged, or otherwise not received by the intended recipient in whole or in part or for any computer or technical error of any kind; (c) electronic miscommunications or failures, technical hardware or software failures of any kind, lost or unavailable network connections, or failed, incomplete or delayed computer transmissions which may limit an entrant’s ability to participate in the Giveaways; (d) technical malfunctions of the telephone network, computer online system, computer equipment, software, program malfunctions, or other failures, delayed computer transactions, or network connections that are human, mechanical, or technical in nature, or any combination thereof, including any injury or damage to entrant’s or any other person’s computer related to or resulting from downloading any part of a Giveaway; (e) action or inaction of any third party, including any other entrant to the Giveaway; or (f) any warranty of fitness or merchantability related to the Prize, or the function or operation thereof, which will be the sole responsibility of the Prize manufacturer. BY ENTERING, YOU HOLD COMPANY AND ANY GIVEAWAY SPONSOR AND THEIR PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AND AGENTS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS (COLLECTIVELY “RELEASEES”) HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIM ARISING FROM ENTRY IN A GIVEAWAY, PARTICIPATION IN A GIVEAWAY, OR USE OF ANY PRIZE. RELEASEES ARE NOT RESPONSIBLE FOR LOST, LATE, DAMAGED, MISDIRECTED, ILLEGIBLE, INCOMPLETE, OR MUTILATED ENTRIES, OR FOR ANY COMPUTER, ONLINE, TELEPHONE OR TECHNICAL MALFUNCTIONS, DELAYS OR HUMAN ERRORS THAT OCCUR IN THE PROCESSING, TRANSMISSION OR RECEIPT OF ENTRIES, OR FOR INACCURATE TRANSCRIPTION OF ENTRY INFORMATION, OR FOR ENTRIES THAT ARE MISDIRECTED, GARBLED, LOST OR DELAYED BY COMPUTER TRANSMISSIONS, OR IF FOR ANY REASON, THE GIVEAWAY IS NOT CAPABLE OF BEING CONDUCTED AS PLANNED, INCLUDING BUT NOT LIMITED TO, INFECTION BY COMPUTER VIRUSES, BUGS, TAMPERING, UNAUTHORIZED INTERVENTION, FRAUD, TECHNICAL FAILURES, OR OTHER CAUSES BEYOND THE CONTROL OF COMPANY OR ANY GIVEAWAY SPONSOR.
9.7 Miscellaneous. Any person attempting to defraud or in any way tamper with any Giveaway will be ineligible for Prizes and may be prosecuted to the full extent of the law. Company reserves the right to modify this Section 9 in any way or at any time. Company reserves the right, in its sole discretion, to shorten, extend, modify, cancel or suspend any Giveaway in its sole discretion at any time and without notice, including should viruses, bugs, or other causes beyond their control corrupt the administration, security, or proper play of any Giveaway. Winners of Giveaways will be posted for a period of time on the Service.
10. PRODUCTS; STREAMING RADIO SERVICE
1.2 Company may offer products (“Products”), such as MP3 downloads, for sale on the Service. The price for each Product will be displayed at the point of purchase. You will be responsible for the payment of any Product purchased by you, as well as any other fees associated with Products.
1.4 Starpulse may offer a noninteractive, streaming radio service through the Service (the “Streaming Radio Service”). The Streaming Radio Service is available only to Users in the United States. You may only listen to the Streaming Radio Service through the Service or a device supported by the Service. Products and the Streaming Radio Service are for your personal, non-commercial use only.
1.5 Company reserves the right to immediately halt the offering or sale of any Products [or the Streaming Radio Service] in its sole and absolute discretion, without any liability to any User.
11. DISPUTES BETWEEN AND AMONG USERS
11.1 You agree that all disputes between you and any other User(s) of the Service shall be resolved between you and such other User(s) directly. You are solely responsible for your interactions with other Users of the Service. By using the Service, you do not surrender any of the rights or causes of action you may have against any other User(s) of the Service; provided, however, that any disputes you have with Company are subject to Section 21 (Dispute Resolution). Company, including Company employees, representatives and agents, are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to, any communications, transactions, interactions, disputes or any relations whatsoever between Users. Company does not guarantee the accuracy of postings or User communications on or through the Service.
12. INTELLECTUAL PROPERTY RIGHTS
Generally. The content made available on or through the Service, including without limitation, any text, graphics, photos, software, music, videos, sounds, games and interactive features, but excluding User Content, Publicity Content (as defined in the Contributed Content Terms), Published Content (as defined in the Contributed Content Terms) and Messages, may be protected by copyright or other intellectual property rights and owned by Company or third party licensors of Company. No material from the Service may be copied, reproduced, uploaded, republished, transmitted, posted, or distributed in any way without written permission of the copyright owner or as otherwise specified in these Terms or permitted by express functionalities of the Service. Modification of materials obtained from the Service, including, but not limited to, User Content or Contributed Content, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of the copyright owners, Company or its licensors, unless you have obtained express written authorization to the contrary. Permission for all other uses of materials made available on or through the Service must be obtained from Company or the copyright owner of User Content in advance and in writing. Requests for such authorization from Company should be submitted by directing your inquiry through our contact page to the Reprints Department.
12.1 via contact page to the Reprints Department. All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to Company.
12.2 Trademarks. All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, are proprietary to Company or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
12.3 License Grant to You. You are hereby granted a limited, non-assignable, revocable license to use the Service for your personal, non-commercial use, including any software included with the Service, as provided for in these Terms and pursuant to the authorized features of the Service without modification, so long as you agree to these Terms, subject to Company’s right to terminate your right to use the Service in its sole discretion at any time.
12.4 No Implied Rights. There are no implied licenses granted in these Terms and all rights not granted to you as a User are expressly reserved by Company.
13. OTHER PROHIBITED ACTIVITIES
13.1 In using the Service, you agree not to:
(13.1.a) Create a false identity or impersonate another person or entity in any way;
(13.1.b) Post, upload or otherwise transmit to or through the Service any information or content that is illegal, deceptive, intentionally false or misleading or infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including any content that is invasive of personal privacy or publicity rights), including by incorporating any such material in User Content or Contributed Content;
(13.1.c) Organize, upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) not otherwise provided for herein;
(13.1.d) Restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users of the Service not otherwise provided herein;
(13.1.e) Organize, upload or otherwise transmit to or through the Service any unlawful, harmful, harassing, violent, humiliating to other people (publicly or otherwise), abusive, racially or ethnically offensive, defamatory, threatening, profane, vulgar, sexually explicit, pornographic, hateful or otherwise objectionable material of any kind, and any material that can cause harm or delay to the Service or computers of any kind;
(13.1.f) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Company;
(13.1.g) Gain unauthorized access to the Service, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
(13.1.h) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Service, use of the Service, access to the Service or content obtained through the Service, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Company’s express written consent:
(13.1.h.i) copying, caching or reformatting any content, including User Content, musical works, sound recordings, or Contributed Articles, available on the Service for commercial purposes in any fashion whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Service to alternative delivery formats;
(13.1.h.ii) framing, embedding and/or passing off User Content or Contributed Content for which you are not the Contributor obtained from the Service in such a manner as to present them as originating from a source other than the Service;
(13.1.h.iii) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available;
(13.1.h.iv) using the Streaming Radio Service as a background/foreground commercial music service in any physical establishment or on any website; and
(13.1.h.v) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Company or obtained from the Service.
(13.1.i) Upload, Post or otherwise transmit or make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(13.1.j) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or any content on the Service, or features that enforce limitations on the use of the Service or any content on the Service;
(13.1.k) Use any scraper, spider, robot or other automated means of any kind to access the Service, except and solely to the extent permitted by these Terms and the features of the Service, deep-link to any feature or content on the Service, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
(13.1.l) Interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;
(13.1.m) Violate any applicable federal, state or local laws or regulations or these Terms; or
(13.1.n) Assist or permit any persons in engaging in any of the activities described above.
14.1 You agree to indemnify, defend, and hold harmless Company and its parent, subsidiaries, affiliates, successors, assigns, investors, partners, sublicensees or any related companies, licensors and suppliers (collectively, “Company Indemnified Parties”), and all Company Indemnified Parties’ respective directors, officers, employees, agents, representatives, and contractors and other Company Users who use any User Content or Contributed Content you Post or make available on or through the Service, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (a) your use or misuse of the Service; (b) your User Content or Contributed Content, including any Company Indemnified Parties’ or any User’s Use of your User Content or Contributed Content consistent with these Terms; (c) your breach or other violation of these Terms; or (d) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Content or Contributed Content infringes or violates any third-party intellectual property rights or other proprietary rights, including any claims for the payment of any royalties claimed by any owner or other party claiming any right in or to all or any portion of any User Content or Contributed Content Posted, linked to, uploaded, or transmitted by you on or through the Service. You further agree to indemnify, defend and hold harmless Company Indemnified Parties and all Company Indemnified Parties’ respective directors, officers, employees, agents, representatives, contractors, and assigns from any damage, injury, death, loss, claim, action, demand or other liability arising from the acceptance, possession and/or use of any Prize or participation in a Contest. Notwithstanding the foregoing sentences of this Section 14, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company Indemnified Parties if Company, in its reasonable discretion, concludes that you are not adequately protecting or are incapable of adequately protecting the Company Indemnified Parties’ interests, and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without the prior written consent from Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it but if Company is unable to communicate with you in a timely manner because of an inactive e-mail address, your indemnification obligation will continue notwithstanding Company’s inability to contact you in a timely manner.
15.1 THE SERVICE, USER CONTENT, CONTRIBUTED CONTENT, MESSAGES AND ANY THIRD PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
15.2 YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU MAY BE EXPOSED TO USER CONTENT, CONTRIBUTED CONTENT, MESSAGES AND THIRD PARTY ADVERTISING FROM A VARIETY OF SOURCES, AND THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING THERETO. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT, CONTRIBUTED CONTENT, MESSAGES, AND THIRD PARTY ADVERTISING THAT IS INACCURATE, OFFENSIVE (INCLUDING THE LYRICS OF ANY SOUND RECORDING), INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER CONTENT AND THIRD PARTY ADVERTISING, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE FOREGOING ACCESSIBLE ON OR THROUGH THE SERVICE. BY ACCESSING OR USING ANY USER CONTENT, CONTRIBUTED CONTENT, MESSAGES, CONTRIBUTED CONTENT (EXCLUDING CONTRIBUTED ARTICLES) OR THIRD PARTY ADVERTISING TRANSMITTED ON OR THROUGH THE SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST COMPANY THAT YOU MAY HAVE ARISING OUT OF OR RELATING THERETO.
15.3 NON-RELIANCE OF USER. YOU ACKNOWLEDGE THAT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE THAT THERE HAVE BEEN NO OTHER REPRESENTATIONS OR WARRANTIES MADE TO YOU, EITHER DIRECTLY OR INDIRECTLY BY COMPANY.
15.4 YOU ACKNOWLEDGE THAT COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, USER CONTENT, CONTRIBUTED CONTENT OR DATA THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY OF THE FOREGOING. YOU SPECIFICALLY DISCLAIM ANY OBLIGATION OR DUTY BY COMPANY TO MAKE ANY DISCLOSURES OF FACT NOT REQUIRED TO BE DISCLOSED PURSUANT TO THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS. YOU AGREE THAT YOU ARE USING THE SERVICE SUBJECT ONLY TO THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS AS FURTHER LIMITED BY THE SPECIFICALLY BARGAINED-FOR EXCLUSIVE REMEDIES AS SET FORTH BELOW.
16. COMPANY LIMITATION OF LIABILITY
16.1 IN NO EVENT WILL COMPANY OR ITS OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE OR ANY PRODUCTS OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, CONTRIBUTED CONTENT OR MESSAGES) MADE AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF COMPANY OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED ONE HUNDRED DOLLARS.
17. LIMITATIONS; BASIS OF THE BARGAIN
17.1 APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY IN LIGHT OF COMPANY’S OFFERING MANY OF THE FUNCTIONALITIES OF THE SERVICE FOR FREE, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT COMPANY WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
18. TERM AND TERMINATION
18.1 Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or your account is terminated by Company, subject to the Survival provision of these Terms.
18.2 Termination by Company. Company may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon Company’s sole determination. You hereby agree to Company’s broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon Company’s termination of your use of the Service, Company may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
Termination by You. You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account on the Service, you may do so by directing your inquiry through our contact page to the Service Department.
18.3 directing your inquiry through our contact page to the Service Department, or using any other account termination functionality that may be offered through the Service. For example, we may develop a functionality that permits you to click on a termination button on your profile Page on the Website. If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by Company. If you stop using the Service but your User Content remains on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.
19. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
19.1 Respect of Third Party Rights. Company respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
19.2 Repeat Infringer Policy. Company’s intellectual property policy is to (a) remove or disable access to material that Company believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content Posted on the Service by “repeat infringers.” Company considers a “repeat infringer” to be any User that has Posted, uploaded or linked to User Content, Messages, Contributed Content on or through the Service and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content, Messages or Contributed Content. Company has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Company’s own determination.
19.3 Procedure for Reporting Claimed Infringement.
(19.3.a) If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(19.3.a.i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(19.3.a.ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(19.3.a.iii) Identification of the specific 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 Company to locate the material;
(19.3.a.iv) Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(19.3.a.v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(19.3.a.vi) 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 should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
19.4 Designated Agent Contact Information. Company’s Designated Agent for notices of claimed infringement can be contacted at:
Via U.S. Mail:
25 Business Park Drive
Branford, Connecticut 06405
Via Facsimile: 203-488-8660
19.5 Counter Notification.
(19.5.a) If you receive a notification from Company that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Company’s Designated Agent through one of the methods identified in Section 19.4, and include substantially the following information:
(19.5.a.i) A physical or electronic signature of the subscriber;
(19.5.a.ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(19.5.a.iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(19.5.a.iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Company may be found, and that the subscriber will accept service of process from the person who provided notification under Section 19.4 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
19.6 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Company reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 19 should be sent to the Designated Agent by directing your inquiry through our contact page to DMCA Department or to the postal address of facsimile number identified above. Any other comments, compliments, complaints or suggestions about Company, the operation of the Service or any other matter should be sent by directing your inquiry through our contact page to the Service Department.
20. JURISDICTIONAL MATTERS
20.1 The Service is controlled and operated by Company from its offices within the State of Connecticut. Company makes no representation that materials on the Websites or through the Service are appropriate or available for use in other locations. Those who choose to access or use the Service from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. The Streaming Radio Service is only offered to Users located in the United States, and any attempt to access the Streaming Radio Service from outside the United States is strictly prohibited. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
21. DISPUTE RESOLUTION
21.1 Company is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. All disputes between Users are subject to the provisions of Section 11. Disputes between a User and Company are subject to this Section 21. For the avoidance of doubt, disputes arising out of the sale of Products must be resolved exclusively with MediaNet, as set forth in Section 10.2.
21.2 Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND COMPANY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a jury or judge, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(21.2.a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Company, to you via any other method available to Company, including via e-mail. The Notice to Company should be addressed to: Media Holdings, LLC, 25 Business Park Drive, Branford, Connecticut 06405 (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Company, then Company will promptly reimburse you for your confirmed payment of the filing fee upon Company’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(21.2.b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(21.2.c) No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 21.2 SHALL BE NULL AND VOID.
(21.2.d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of Connecticut in conducting the arbitration. You acknowledge that these Terms and your use of the Service evidence a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
21.3 Choice of Law; Choice of Forum. These Terms and your use of the Service shall be governed by the substantive laws of the State of Connecticut without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Company under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in New Haven County, Connecticut, and you and Company hereby submit to the personal jurisdiction and venue of these courts and waive any defense of inconvenient forum.
21.4 Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Company seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Company or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, including with respect to any User Content, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
21.5 Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
21.6 Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Company may recover attorneys’ fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
22.1 Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Company with respect to your use of the Service. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Company as authorized in these Terms.
22.2 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Company in the exercise of any power or right under these Terms shall operate as a waiver thereof. No single or partial exercise of any right or power under these Terms shall operate as a waiver of such right or of any other right or power. The waiver by Company of a breach of any provision of these Terms shall not operate or be construed as a waiver of any other or subsequent breach of these Terms.
22.3 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
22.4 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
22.5 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content or Contributed Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.
22.6 Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 2 (Privacy), 4 (Service Security), 5 (Materials Submitted to the Service; License Grant from You to Company), 11 (Disputes Between and Among Users), 12 (Intellectual Property Rights), 13 (Other Prohibited Activities), 14 (Indemnity), 15 (Disclaimers), 16 (Company Limitation of Liability), 17 (Limitations; Basis of the Bargain), 21 (Dispute Resolution), and 22 (Miscellaneous).
22.7 Headings. The heading references in these Terms are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
22.8 Communication. You may contact us by sending correspondence to
25 Business Park Drive
Branford, Connecticut 06405
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
CONTRIBUTED CONTENT TERMS
Writers contributing original editorial content, such as articles commissioned by Company (each, a “Contributing Writer”), publicists submitting official press releases or other talent-authorized content to the Service (each, a “Publicist”) and publishers who currently own or run their own websites or services (e.g., TMZ) and wish to syndicate content from such websites or services on the Service (each, a “Publisher”) are collectively “Contributors.” All content (including Contributed Articles, Publicity Content and Published Content, each as defined below) submitted by a Contributor is “Contributed Content.
If you are a Contributor, you are subject to these Contributed Content Terms, in addition to the Terms. All terms not defined herein have the meaning given to them in the Terms. In the event of a conflict between the Terms and these Contributed Content Terms, the Contributed Content Terms will govern.
1. TYPES OF CONTRIBUTORS
1.1 Contributing Writer. If you are a Contributing Writer, your Contributed Content is “Contributed Articles.” Contributing Writers must register with Company here. In order to register as a Contributing Writer, you must agree to these Contributed Content Terms and provide your full name, address and e-mail address. You may also provide a phone number and answer our writing experience questionnaire, which includes submitting a writing sample. You retain all rights to your writing sample, and such sample will be used solely by Company for evaluation purposes and will not be disclosed publicly on or through the Service. Contributing Writers will be notified of assignments from Company through the “Writers Blog Tools” provided to Contributing Writers upon registration. Company has no obligation to Post your Contributed Articles to the Service.
1.2 Publicists. If you are a Publicist, your Contributed Content is “Publicity Content.” Publicists must agree to these Contributed Content Terms and register with Company here. In order to register as a Publicist, you must provide your full name, company name, address, e-mail address, phone number and website address. You may also provide a website RSS feed URL, if you have one.
1.3 Publishers. If you are a Publisher, your Contributed Content is “Published Content.” Publishers must agree to these Contributed Content Terms and register with Company here. In order to register as a Publisher, you must provide your full name, website name and URL, website RSS feed URL, address, e-mail address and phone number.
2. CONTRIBUTED CONTENT; OWNERSHIP
2.1 Contributing Writers. If you are a Contributing Writer, you agree that all right, title and interest in and to any copyrightable material embodied within your Contributed Articles during the term of these Contributed Content Terms is the sole property of Company. You hereby irrevocably assign fully to the Company all right, title and interest, including the right to register the copyrights in the Contributed Articles in Company’s name, in and to the Contributed Articles. Contributor will not use any invention, discovery, development, improvement, innovation, trade secret or any other pre-existing material (collectively, “Pre-Existing Materials”) in which Contributor does not have a proprietary interest in any Contributed Article. If Contributing Writer includes any Pre-Existing Materials in Contributed Articles, Contributing Writer hereby grants Company a royalty-free, perpetual license to Use such Pre-Existing Material, solely in connection with the applicable Contributed Articles. Notwithstanding the foregoing, Company hereby grants you, as Contributing Writer, a non-exclusive, non-transferable, non-sublicenseable, non-assignable, perpetual, royalty-free, fully paid up, worldwide license to reproduce, transmit, publicly perform, and publicly display your Contributed Articles solely for the purpose of transmitting such Contributed Articles on or through websites owned and operated by Contributing Writer. This license is conditioned on Contributing Writer including attribution to Company by displaying (a) a reasonably sized hyperlink to Company’s website (www.starpulse.com), but in no event a size less than that for any other links on your website; (b) Company’s trademark or logo on any and all Contributing Writer’s sites on which such Contributed Articles appears; and (c) a statement on any webpage on which such Contributed Articles may be viewed containing the following: “© Starpulse.com™, all rights reserved worldwide”.
2.2 Publicists. If you are a Publicist, your Publicity Content must be Posted to the Service through the “Writers Blog Tools” provided to you upon registration. You hereby grant Company a non-exclusive, revocable, worldwide, royalty-free, fully paid up license to reproduce, transmit, publicly display, and publicly perform, your Publicity Content on or through the Service. By Posting your Publicity Content on or through the Service, you hereby represent and warrant to Company that (a) you have obtained all necessary rights, permissions, licenses, authorizations, and clearances to grant the licenses and rights set forth in these Contributed Content Terms with respect to such Publicity Content and (b) the Use of such Publicity Content in any manner permitted by these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Company or any Third Party Site on or through which the Service is made available to pay any fees of any kind to any third party for the Use of any Publicity Content.
2.3 Publishers. If you are a Publisher, all Published Content must be Posted to the Service through the “Writers Blog Tools” provided to you upon registration. You hereby grant Company a non-exclusive, revocable, worldwide, royalty-free, fully paid up license to reproduce, transmit, publicly display, and publicly perform, your Published Content on or through the Service. By Posting your Published Content on or through the Service, you hereby represent and warrant to Company that (a) you have obtained all necessary rights, permissions, licenses, authorizations, and clearances to grant the licenses and rights set forth in these Contributed Content Terms with respect to such Published Content and (b) the Use of such Published Content in any manner permitted by these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Company or any Third Party Site on or through which the Service is made available to pay any fees of any kind to any third party for the Use of any Published Content.
3.1 In consideration of the license you grant to Company in Section 2 above, Company will provide you with publicity on the Service, an opportunity to reach the Service’s audience and a byline if you are a Contributing Writer.
4. CONFLICTS OF INTEREST; RESTRICTIONS ON SOLICITATION BY CONTRIBUTING WRITERS
Contributor represents and warrants Contributor is free to enter into these Contributed Content Terms, and the performance of these Contributed Content Terms does not, and will not violate the terms of any other agreement between Contributor and a third party. During the term of these Contributed Content Terms and for six (6) months following termination or expiration of these Contributed Content Terms, Contributing Writer will not, without Company’s prior written consent,, directly or indirectly, hire, solicit, or encourage to leave Company’s employment, any employee, consultant or other Contributing Writer of Company who has performed services for Company during the preceding twelve (12) months.
The photos displayed on Starpulse.com are licensed for usage on Starpulse.com only. If you are a Contributing Writer, you may have photos licensed by Starpulse (“Starpulse Photos”) associated with your Contributed Articles on the Service, and only on the Service. For the avoidance of doubt, you may not use any Starpulse Photos on any other platform, service, forum or other website, including, but not limited to, your personal blog, if you have one. If you wish to submit photographs to the Service to be used in connection with your Contributed Articles, you must submit proof of (a) a valid license to the photographs that permits the Service to use such photographs or (b) ownership of such photographs.
6.3 Definition of Confidential Information. “Confidential Information” means any non-public information that relates to the actual or anticipated business and/or products, research or development of Company, its affiliates or subsidiaries, or to Company’s, its affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, marketing plans, or other information regarding Company’s, its affiliates’ or subsidiaries’ products or services and markets therefor and customers.
6.2 Nonuse and Nondisclosure. During and after the term of these Contributed Content Terms, Contributor will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and Contributor will not (a) use the Confidential Information for any purpose whatsoever other than as necessary to provide Contributed Content to Company, or (b) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of Company. Contributor may disclose Confidential Information to the extent compelled by applicable law; provided however, prior to such disclosure, Contributor shall provide prior written notice to Company and seek a protective order or such similar confidential protection as may be available under applicable law. Contributor agrees that no ownership of Confidential Information is conveyed to the Contributor. Contributor further agrees that Contributor will not improperly use, disclose, or induce Company to use any proprietary information or trade secrets of any former or concurrent employer of Contributor or other person or entity with which Contributor has an obligation to keep in confidence.
7. RIGHT TO INJUNCTION.
The parties agree that certain breaches by Contributor of these Contributed Content Terms (including, without limitation, breaches of Section 2) would result in irreparable harm and that money damages would be an inadequate remedy for such breach. Accordingly, Company will be entitled to seek immediate equitable and other provisional relief, including, without limitation, preliminary, temporary and/or permanent injunctive relief, as a remedy for such breach in addition to any other remedies available at law or in equity and without prejudice to any such other remedies. Contributor agrees, however, that Contributor may not seek injunctive relief against Company and may only seek a claim for monetary damages in the event of any breach of these Contributed Content Terms by Company.
8. INDEPENDENT CONTRACTOR
It is the express intention of the Company and Contributor that Contributor performs the services under these Contributed Content Terms as an independent contractor to the Company. Nothing in these Contributed Content Terms shall in any way be construed to constitute Contributor as an agent, employee or representative of Company. Without limiting the generality of the foregoing, Contributor is not authorized to bind Company to any liability or obligation or to represent that Contributor has any such authority. Contributor shall incur all expenses associated with performance. Company and Contributor agree that Contributor will receive no Company-sponsored benefits from Company where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401(k) participation. If Contributor is reclassified by a state or federal agency or court as Company’s employee, Contributor will become a reclassified employee and will receive no benefits from Company, except those mandated by state or federal law, even if by the terms of Company’s benefit plans or programs of Company in effect at the time of such reclassification, Contributor would otherwise be eligible for such benefits.
9. WRITING GUIDELINES AND CODE OF CONDUCT
Contributed Content is subject to Company’s Writing Guidelines. Company reserves the right to proof and edit Contributing Writers’ Contributed Content to ensure it complies with the Writing Guidelines.
These Contributed Content Terms will remain in effect until terminated by either party. Contributors may terminate these Contributed Content Terms by directing your inquiry through our contact page to the Editorial and Reviews Department. The following provisions survive termination of these Contributed Content Terms: 2 (Contributed Content; Ownership), 4 (Conflicts of Interest; Restrictions on Solicitation by Contributing Writers); 5 (Photos), 6 (Confidentiality) (for a period of three years following termination), 7 (Right to Injunction), 8 (Independent Contractor), 10 (Term).