As used herein, the following capitalized terms shall have the meanings set forth as follows:
“Content” means and includes, without limitation, photos, images, artwork, graphics, videos, animations, text, editorials, comments, writings, personal information, audios, music, liner notes, lyrics, and other elements and materials, in any media or format now known or hereinafter developed or devised, whether physical, electronic, digital, analog or otherwise.
“Collaborative Content” means any customized Content that results when a User incorporates, combines, or integrates, User Submitted Materials into DAV Content (defined below) through the use of a functionality or feature of this Site and the Service. An example of Collaborative Content would be a “Honor Wall” image, including any parts or snippets thereof, resulting from a User uploading his or her own photo into our mosaic.
“DAV Content” means any and all Content (excluding User Submitted Materials) made available on the Site or through the Service, including Content owned or controlled by DAV or its corporate affiliates, Content licensed or otherwise provided to DAV by Third Party Licensors (defined below), as well as any template or layout in which User arranges or organizes User Submitted Materials through tools and features made available through the Site or Service.
“DAV Mosaic Production” means the resultant mosaic image and sentiment that is generated or created when User incorporates, combines, or integrates User Submitted Materials into DAV Content using the Service. An example of a DAV Mosaic Production would be when User uses the photos through the Service and incorporates DAV Content that may consist of audio files, animation, and/or certain designs and layouts to create a “Honor Wall” mosaic image.
“Service” means any and all services, tools, software, applications, and functionalities relating to the mosaic generation service, or any other service, as may be made available on the Site by DAV from time to time.
“Third Party Licensors” means any and all third parties that make available to DAV, pursuant to a license or otherwise, their proprietary Content, products, or services for use deployment, display, performance, or distribution via this Site.
“Trademarks” means any and all marks, brands, logos, designs, slogans, catch words and phrases, business names, trade names, trade dress, packaging designs, label designs, webpage layouts, look and feel, and other indicia of source, origin or identification, whether or not registered, owned or controlled by DAV, its affiliates, and Third Party Licensors. Any and all Trademarks owned or controlled by DAV and/or its corporate affiliates, including, without limitation, DAV name and logos, and the layout and design of the Site, are referred to hereinafter as “DAV Trademarks”; and any and all Trademarks owned or controlled by Third Party Licensors as “Third Party Licensor Trademarks.”
“User Submitted Materials” means Content User(s) uploads, submits displays, distributes, or otherwise make available via the Site through the Services, or both, but excluding any and all DAV Content. Examples of User Submitted Materials include, but are not limited to, personal photos and personal information about himself or herself or others for whom and about whom User has permission, consent, or post photos and information.
This Site and Service allow, among other things, User, who must be 13 or older, or if under 13 who is assisted by a parent or guardian, to submit User Submitted Materials to generate a mosaic image for sharing and distribution, including possibly for public review and comment, both in public forums and private forums, including private messaging. Thus, by submitting User Submitted Materials with personal Content on the Site or through the Service, User hereby waives any and all privacy expectations (including the privacy expectations of any other individual who appears in the submitted content) with respect to DAV’s use of such Content. If User does not wish to have personal Content viewable by others, User should not use the Site and Service.
3. AGE RESTRICTION REGARDING THE USE OF THE SERVICE:
User must be at least 13 years old to use the Service and this Site. If User is at least 13, but is still a minor (this depends on where User lives), User must have his or her parent or legal guardian’s permission to use the Service and Site. In this case, User’s guardian or parent must read this Agreement with User. Children should only access and use this Site and Service with the participation and supervision of their parents or legal guardians. Only parents or legal guardians are allowed to use the Service and post personal Content. DAV does not knowingly collect personal information directly from children on this Site.
Notice to parents and guardians. By granting your child permission to use the Service, you agree to the terms of this Agreement on behalf of your child. You are responsible for monitoring and supervising your child’s use of the Service and activity on this Site. If your child is using the Service and either does not have your permission or is under 13, please contact DAV immediately. If you have questions about whether the Service is appropriate for your child, please contact us at email@example.com.
4. TERM AND TERMINATION
This Agreement will remain in full force and effect for as long as the User uses the Service or the Site, whether as a visitor or User (“Term”). Either User or we may terminate User’s access to the Site or Service at any time, with or without cause, and with or without prior notice. Without limiting the foregoing and by way of example only, we may terminate User’s access if User violates the terms of this Agreement, or if we believe User’s conduct or User Submitted Materials violates any applicable law, or may damage the reputation or goodwill of DAV or its corporate affiliates. In such instance, and without limiting our other rights, remedies, and recourse, we may elect to temporarily or permanently block User’s Internet protocol address to prevent further use of the Site or Service.
Upon termination for any reason, User may no longer have further access to, and we may delete, any User Submitted Materials or information relating to User’s use of or activity on the Site or the Service. User hereby acknowledges and agrees that in no instance do we have an obligation to User or anyone, other than as may be required by applicable law, to save or make available any Submitted Materials, Collaborative Content, DAV Mosaic Production, or any information relating to User to User or any third party. User further acknowledges and agrees that DAV will not be responsible or liable to User or any other party for loss or deletion of any User Submitted Materials, Collaborative Content, or DAV Mosaic Production, or any information relating to User or User’s activity on the Site, regardless of the cause of any such loss or deletion, including but not limited to, in connection with our decision to terminate User’s access or our decision to shut down the Site or Service in part or in its entirety.
Notwithstanding the foregoing, however, User acknowledges that with respect to User Submitted Materials that are integrated into or incorporated as part of any Collaborative Content or DAV Mosaic Production ), all of the license for such materials, as granted in Sections 10 of this Agreement, survives and shall extend in perpetuity and without right of revocation by User, meaning that DAV will have the continued, irrevocable, perpetual ownership right throughout the world to exploit any such DAV Mosaic Production and Collaborative Content (as defined below) that may embody, use, incorporate, or integrate any User Submitted Materials (including parts thereof) in any and all media now known or hereafter devised in accordance with Section 10.
5. LIMITED LICENSE FROM DAV
6. USER CONDUCT
User is solely responsible for all User Submitted Materials submitted, posted, or distributed through the Service.
While using the Site and the Service (and consistent with the intent of other provisions in this Agreement governing acceptable materials and objectionable and prohibited materials and Content) User agrees not to: (i) violate any applicable law or regulation; (ii) infringe the rights of any third party, including without limitation, any and all intellectual property, privacy, publicity, moral, contractual rights; (iii) use any content or information available on the Site or through the Service for any unauthorized purpose; (v) interfere with or damage any of the Site or Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, denial of service attacks, packet or IP spoofing, or similar methods or technology; (vi) use any of the Site or Service to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, any defamatory or objectionable materials of any kind, photographs of others, personal contact information or account numbers except where User has obtained express permission from such other person or entity in connection with any of the foregoing,; (vii) use any of the Site or Service in connection with the distribution of unsolicited commercial e-mail (“Spam”) or advertisements, including solicitation for adult services; (viii) “stalk” or harass any other user of the Site or Service; (ix) collect or store any information about any other user other than in the course of the permitted use of the Site or Service; (x) use any of the Site or Service for any purpose other than as permitted in this Agreement or expressly authorized in writing by DAV, including for any commercial purpose (including, without limitation, to research, advertise, market, promote, sell or otherwise exploit any product or service not otherwise expressly and specifically authorized by DAV in writing); (xi) sell or otherwise transfer any other User’s information or other user’s User Submitted Materials without the written approval of all parties, including any such other User; or submit any materials that conflict with any of User’s representations and warranties made by User in this Agreement or (xii) assist any third party in doing any of the foregoing.
In addition to its other rights and remedies to which it is entitled, DAV reserves the right to terminate User’s access to the Service or Site or terminate this Agreement with respect to User for violation or suspected violation of any terms and conditions of this Agreement, and may prohibit User from further using the Service or visiting the Site. User is solely responsible for User’s interactions with others as a consequence of the distribution, display, or use of User Submitted Materials, DAV Mosaic Production, or Collaborative Content.
DAV will not be responsible for any harm, damage, or offense resulting from User’s interactions with others, including other users of the DAV Service. DAV reserves the right, but shall have no obligation, to monitor interactions between User and other users of the DAV Service and take any action in good faith to restrict access to or the availability of any material that DAV or another user of the DAV Service may consider, at DAV’s sole discretion, to be objectionable, including, by way of example and in no way limiting, those Content or materials which DAV may view, at its sole discretion, likely to or does violate any applicable law or regulation, obscene, lewd, defamatory, lascivious, filthy, excessively violent, harassing, hateful, or profane.
7. REPRESENTATIONS AND WARRANTIES:
User represents and warrants that:
the Site, Service and Content are protected by copyright, trademark and other laws of the United States and foreign countries. Except as expressly provided in this Agreement and without limiting Section 5(c), DAV and its Third Party Licensors exclusively own all right, title and interest in and to the Site, Service and DAV Content, including all associated intellectual property rights. User shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Service or Content. Unless otherwise expressly and specifically authorized by DAV in writing in each instance, User’s right to use the Site, Service, and DAV Content, as set forth herein, shall, be for personal non-commercial use only and shall not in any way transfer or convey any ownership rights or other proprietary interests therein to User.
Subject to the licenses granted in Sections 9 and 10 of this Agreement, User shall at all times retain all right, title and interest in and to the User Submitted Materials provided by User hereunder (including, without limitation, the copyrights therein and thereto). For the avoidance of doubt, when User submits User Submitted Materials on the Site or through the Service, User acknowledges that DAV and third parties may use the User Submitted Materials as described herein.
9. USER SUBMITTED MATERIALS
User acknowledges and agrees he or she is solely responsible for all User Submitted Materials that User makes available through the Site or Service. Unless otherwise expressly stated in this Agreement, User hereby grants to DAV a worldwide, perpetual, transferable, royalty-free, non-exclusive, irrevocable right and license, with a right to sublicense, any or all rights, to, directly or indirectly, use, reproduce, distribute, create derivative works, publicly display, perform, broadcast, stream, or otherwise exploit User Submitted Materials (whether alone or together with any Content, LPC Content, or as part of DAV Mosaic Production or Collaborative Content) in any form, medium, or technology, now known or later developed or devised, in whole or in part, for any purpose, including for both commercial or non-commercial purposes. User hereby acknowledges and agrees that DAV rights to sublicense and transfer these licenses and rights include the right to distribute via third party distribution channels that may use Viral Distribution (defined below). User acknowledges and agrees that neither DAV nor any of its sub licensees, through multiple tiers of distribution, have any obligation to provide any compensation to User in connection with the User Submitted Materials and User licenses granted in this Agreement. DAV does not claim any ownership rights in any such User Submitted Materials.
User hereby agrees not to assert any right, title, or interest in any and all DAV Content and Trademarks with which User Submitted Materials may be combined or into which all or any portion of User Submitted Materials may be incorporated or integrated. User acknowledges and agrees that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all Trademarks and DAV Content shall remain the sole and exclusive property of DAV and/or its Third Party Licensors. For the avoidance of doubt, with respect to any and all Collaborative Content and DAV Mosaic Production, User acknowledges and agrees that its rights therein and thereto are expressly and solely limited to the part or portion of the Collaborative Content and DAV Mosaic Production that comprise of the User Submitted Materials and shall in no event extend to any DAV Content or any Trademarks contained or embodied therein.
10. LICENSE FOR USE OF NAME AND LIKENESS
Unless otherwise expressly stated in this Agreement, User hereby grants to DAV a worldwide, perpetual, transferable, royalty-free, non-exclusive, irrevocable right and license, with a right to sublicense, to, directly or indirectly, use, reproduce, distribute, create derivative works, publicly display, perform, broadcast, stream, or otherwise exploit, in any form, medium, or technology, now known or later developed or devised, in whole or in part, for any purpose, including for both commercial and non-commercial purpose, (i) User’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials (to the extent provided by User, and/or contained or embodied in any User Submitted Materials and (ii) any other individual’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials, where such other individual appears in the User Submitted Materials, in connection with DAV’s exercise of the licenses granted by User, including but not limited to, for purposes of distribution, promotion, marketing and/or advertising of the User Submitted Materials, Collaborative Content, DAV Mosaic Production, Site, Service, and DAV or its corporate affiliates, or any other lawful purpose. User represents and warrants that it has the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual’s photograph(s), voice (s), likeness(es), performance(s) and/or biographical materials for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated under this Agreement and consistent with the full scope of rights granted to DAV pursuant to this Agreement. If any such identifiable individual is under the age of 18, User hereby represents and warrants that User has obtained such written consent, release and/or permission from such individual’s parent or guardian to use such individual’s photograph(s), voice (s), likeness(es), performance(s) and/or biographical material for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated under this Agreement and consistent with the full scope of rights granted to DAV pursuant to this Agreement. User agrees to provide DAV a copy of any such consents, releases and/or permissions upon its request. User represents, warrants, and covenants that User, including any such individuals, shall not assert of any intellectual property, privacy, publicity, contractual, moral, or other similar rights, or make any claims that any User Submitted Materials are objectionable or otherwise defamatory under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder.
11. SITES AND CONTENT OF THIRD PARTIES
The Site and Service may contain Content of third parties, including Content provided by Third Party Licensors and User Submitted Materials (collectively “Third Party Content”), as well as links to third party web sites (“Third Party Sites”). DAV does not control Third Party Content and Third Party Sites and makes no representations or warranties about them. User understands that by using the Site or Service, User may be exposed to Third Party Content or Third Party Sites that are false, offensive, indecent or otherwise objectionable. Under no circumstances will DAV be liable in any way for any Third Party Content or Third Party Sites, including, without limitation, any errors or omissions in any Third Party Content or Third Party Sites or any loss or damage of any kind incurred as a result of the use of any Third Party Content or Third Party Sites. User agrees to bear all risks associated with using or relying upon Third Party Content or Third Party Sites.
12. LINKING POLICY
User may link from User’s own website or social network page or profile to the Site, provided, however, that User: (I) must NOT frame or create a browser or border environment around any of the DAV Content on the linked DAV Site or otherwise mirror any part of the linked DAV Site; (ii) must NOT imply that DAV or any of its Third Party Licensors is endorsing or sponsoring User, User’s site or any User product or service, unless expressly authorized in writing by DAV and/or its Third Party Licensors in each instance; (iii) must NOT present false information about, or disparage, tarnish, or otherwise, in DAV’s sole opinion, harm DAV and/or any of its Third Party Licensors in any way; (iv) must NOT use any DAV Trademarks without the prior written permission of DAV, or use any Third Party Licensors without the prior written permission of their respective owners; and (v) must NOT contain Content that, in DAV’s opinion, could be construed as distasteful, offensive, profane, controversial, or otherwise objectionable. By linking to the DAV Site, User agrees to be bound by and comply with all of the above linking restrictions and requirements.
Notwithstanding anything to the contrary contained in this Agreement, DAV reserves the right to prohibit and deny linking to the DAV Site or Service for any reason in its sole and absolute discretion, even if the linking complies with all of the restrictions and requirements described above.
13. USER DISPUTES.
User is solely responsible for User’s interactions with other Users or others, including, without limitation, recipients of any viewer of User Submitted Materials any DAV Production Mosaic(s) or Collaborative Content, as a direct or indirect result of using the Site or Service. . DAV reserves the right, but has no obligation, to monitor disputes between you, others, and other Users.
14. COLLABORATIVE CONTENT
User’s use of any Collaborative Content is subject to the following additional terms and conditions: (I) the permission for User to use DAV Content to generate Collaborative Content or otherwise in association with User Submitted Materials is expressly limited to DAV Content specifically made available by DAV for that purpose and in accordance with the license granted by DAV, and may be revoked by DAV at any time without notice or liability to User; (ii) User’s use of Collaborative Content is subject to this Agreement and any additional terms and conditions as DAV may from time to time prescribe; (iii) User may NOT make any commercial use of any Collaborative Content or of any DAV Content embodied in any Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit same, in whole or in part, EXCEPT that User may use the Site and Service to generate and engage in Viral Distribution (defined below) of Collaborative Content in the form of DAV Mosaic Production, but in each case only to the extent expressly permitted by this Agreement or otherwise by DAV in writing signed by both parties. As used herein, “Viral Distribution” means solely for non-commercial purposes : (a) sending of Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery; (b) reproducing copies of Collaborative Content for personal use; and (c) posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content.. User agrees that in connection with the foregoing, User must always include and keep intact, and not remove, deface, or alter, any and all of DAV’s Trademarks and Third Party Licensor’s Trademarks, and other proprietary rights notices, legends, watermarks, and other markings contained or embedded in or otherwise accompanying Collaborative Content (or any DAV Content portion thereof), and that User agrees to comply with all usage and viral distribution guidelines that may be prescribed by DAV from time to time. USER further agrees not to engage in spamming or other unlawful or controversial behavior in connection therewith.
User acknowledges and agrees that we have no control over what the recipient does with the Collaborative Content or DAV Mosaic Production and that we, including our Third Party Licensors, are not responsible if a link to such Collaborative Content or DAV Mosaic Production is shared by User or the recipient or the sender outside of our Site, such as on a social medial channel. We are also not responsible for any undelivered or misbelieved Collaborative Content or DAV Mosaic Production due to incorrectly provided contact information, or for any blocking by spam filters or security software. While we do not exercise any editorial control over your transmissions, we reserve the right to review User’s uploads and transmissions to ensure compliance with this Agreement.
User agrees to defend, indemnify, reimburse and hold DAV and its parent, subsidiary and affiliated entities, its Third Party Licensors, and its and their respective members, managers, officers, directors, representatives, employees, agents, contractors, designees, licensees, sub licensees, successors and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) directly or indirectly arising out of or related to: (i) User’s use of the DAV Site, DAV Services; DAV Content, Collaborative Content, and/or DAV Mosaic Production, (ii) DAV’s use of ,license to, or the exercise of the rights and licenses granted by User in connection with the User Submitted Materials; (iii) any breach or alleged breach of User’s representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions hereof; and (iv) User’s violation or alleged or threatened violation of any laws, rules or regulations, or any rights of a third party, including, without limitation and by way of example only, any trademark, copyright, patent, trade secret, defamation, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of User Submitted Materials as contemplated hereunder.
16. SITE AND SERVICE PERFORMANCE:
User acknowledges and agrees that the operation of the DAV Site and Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and DAV shall not be responsible to User or others for any such interruptions, errors or problems or an outright discontinuance of the DAV Service. There are no assurances whatsoever that any of the User Submitted Materials or any part or element thereof shall actually be utilized on any of the DAV Site or if so utilized continue to be available for any particular time. DAV has the right, in its sole and absolute discretion, to remove from the DAV Sites at any time the User Submitted Materials or any part thereof and/or to revoke any sublicense granted by DAV to any affiliate or unaffiliated third party. Notwithstanding the foregoing, DAV does not control the content of the User Submitted Materials and does not have any obligation to monitor such content for any purpose. User acknowledges that User is solely responsible for all content submitted to DAV Site. The DAV Site may be discontinued at any time, with or without reason and without any liability to User or to any third party for any modification or discontinuance of the Service.
17. DISCLAIMER OF WARRANTIES
THE SITE, SERVICE, AND DAV CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED… TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DAV AND ITS THIRD PARTY LICENSORSDISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE SITE AND SERVICE, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. . NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS. IN ADDITION, ALTHOUGH DAV INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE SITE AND SERVICE, AND WHETHER OR NOT DAV IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, DAV DOES NOT WARRANT THAT THE DAV SITE OR SERVICE, ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DAV SITE OR SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. NOTE: SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
AS SET FORTH ELSEWHERE IN THIS AGREEMENT, USER ACKNOWLEDGES AND AGREES THAT USER IS SOLELY RESPONSIBLE FOR ALL OF USER’S COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICE AND WITH OTHER PERSONS WITH WHOM USER COMMUNICATES OR INTERACTS AS A RESULT OF USER’S USE OF THE SITE OR SERVICE, INCLUDING IN CONNECTION WITH USER’S DIRECT OR INDIRECT DISTRIBUTION TO, OR SHARING OF COLLABORATIVE CONTENT AND/OR DAV MOSAIC PRODUCTION WITH, OTHERS. USER ACKNOWLEDGES AND AGREES THAT DAV DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICE, NOR DOES DAV MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICE. DAV MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICE. USER AGREES TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICE AND WITH OTHER PERSONS WITH WHOM USER COMMUNICATES OR INTERACTS AS A RESULT OF USER’S USE OF THE SITE OR SERVICE OR ACTIVITY IN CONNECTION THEREWITH.
BY ACCESSING OR USING THE DAV SITE OR DAV SERVICE, USER REPRESENTS AND WARRANTS THAT USER’S ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE USER ACCESSES OR USES THE SITE OR SERVICE.
18. NO LIABILITY FOR THIRD PARTY USE
DAV, INCLUDING ITS THIRD PARTY LICENSORS, DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE USER SUBMITTED MATERIALS MADE AVAILABLE ON THE SITE BY USER PURSUANT TO THE TERMS OF THIS AGREEMENT. USER SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF USER’S USER SUBMITTED MATERIALS BY A THIRD-PARTY, AND NOT FROM DAV OR ANY OF ITS THIRD PARTY LICENSORS. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS USER SUBMITTED MATERIALS FROM DAV (WHETHER OR NOT WITH OUR PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED HEREUNDER, USER WILL SEEK REDRESS FROM THAT OTHER PERSON AND NOT FROM DAV OR ANY OF ITS THIRD PARTY LICENSORS, AND THAT USERS WILL NOT HOLD DAV OR ANY OF ITS THIRD PARTY LICENSORS RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
19. EXCLUSION OF DAMAGES
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL DAV, ITS AFFILIATES, AND THIRD PARTY LICENSORS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES (INDIVIDUALLY AND COLLECTIVELY, “THE DAV PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF DAV AND THE DAV PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) SITE, SERVICE, OR DAV CONTENT, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. USER SPECIFICALLY ACKNOWLEDGES THAT THE DAV PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL OR LEGAL, OR OTHER CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER. FURTHERMORE, THE DAV PARTIES WILL HAVE NO LIABILITY TO USER OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED. USER’S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE, SERVICE, OR DAV CONTENT IS TO STOP USING THE SITE AND SERVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR, INCLUDING THAT OF DAV PARTIES, TOTAL AND AGGREGATE LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE PRICE PAID BY USER TO USE THIS SITE, SERVICE. OR DAV CONTENT, IF ANY. USER EXPRESSLY WAIVES ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICE, THE SITE, AND/OR THE USER SUBMITTED MATERIALS (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF THE USER SUBMITTED MATERIALS BY DAV OR ANY OF ITS SUBLICENSEES). THE PARTIES ACKNOWLEDGE AND AGREE THAT DAV HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN USER AND DAV, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. NOTE: CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO USER.
20. EXPORT CONTROLS:
The Site and Service are controlled and operated from the United States. The Site and Service are not subject to the laws or jurisdiction of any state, country or territory other than that of the United States. DAV does not represent or warrant that the Site and Service or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access this Site do so on their own initiative and at their own risk, and are responsible for complying with all applicable laws, rules and regulations. DAV reserves the right to limit the availability of this Site and Service, in whole or in part, to any person, geographic area or jurisdiction it may choose, at any time and in its sole discretion.
Any software and technology made available from the Site (the “Software”) is subject to United States export controls. No Software may be downloaded from the DAV Site or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the software or technology, User represents and warrants that User is not located in, under the control of, or a national or resident of any such country or on any such list.
21. COPYRIGHT ISSUES
While DAV is not obligated to review User Submitted Materials for copyright infringement; DAV is committed to protecting copyrights and expects users of this Site and Service to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If User believes in good faith that any material used or displayed on or through the Site and Service infringes Users copyright, User (or User’s agent) may send DAV a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow DAV to locate the material on the Site and Service; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If User believes in good faith that a notice of copyright infringement has been wrongly filed against User the DMCA permits User to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details.
Notice for California Users
this notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
22. Miscellaneous TERMS
This Agreement is governed by and construed in accordance with the laws of the State of California and United States of America, without regards to its conflict of law provisions. User agrees to submit to the exclusive jurisdiction of any State or Federal court located in the County of Santa Clara, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement, or the application thereof to any person, place or circumstance, is held to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible, or, if incapable of such enforcement, will be deemed to be deleted from this Agreement, and the remainder of this Agreement and such provisions as applied to other persons, places and circumstances will remain in full force and effect. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between User and DAV relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between User and DAV with respect to such subject matter. This Agreement is not assignable, transferable or sublicense able by User except with the prior written consent of DAV in each instance. This Agreement may not be modified or amended except as set forth in this Agreement. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
23. ASSIGNMENT RIGHTS OF DAV
DAV shall have the right to assign this Agreement in whole or in part to any person or business entity. User may not assign User’s rights or delegate User’s obligations under this Agreement without the prior written consent of DAV
all copyright infringement notifications to DAV in regards to any Content (including User Submitted Materials) on the DAV Site must be made in accordance with the section entitled “COPYRIGHT ISSUES” set forth above.
All other notices, requests and other communications (“Communications”) under this Agreement must be in writing and sent to DAV at the following address(es)
Attn: Bryan Lett
Disabled American Veterans
P.O. Box 14301
Cincinnati, OH 45250-0301
Communications shall be deemed received: (i) for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt as indicated on the return receipt; (ii) for Communications sent by personal delivery, on the date of personal delivery; and (iii) for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt. No other form of notice shall be accepted under this Agreement.
25. STATUTE OF LIMITATIONS:
User agrees that regardless of any statute or law to the contrary, to the full extent permitted by applicable law, any claim or cause of action arising out of or related to use of the Site or Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
26. Class Action Waiver
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. USER’S ACCESS AND CONTINUED USE OF THIS SITE AND SERVICE SIGNIFIES USER’S EXPLICIT CONSENT TO THIS WAIVER.
In accordance with the other provisions in this Agreement regarding modifications to the Site, Service, and Agreement, DAV reserves the absolute right, at its sole discretion, to modify, discontinue or terminate the Site or Service or to modify the terms of this Agreement, at any time and without prior notice. If we modify the terms of this Agreement, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of These Terms of Service.
By continuing to use the Site or Service after such notice, you are indicating that you agree to be bound by the changes to this Agreement, and the new terms of the Agreement shall govern your submissions of User Submitted Materials and your use of the Site and Service. If the modified terms are not acceptable to you, your only recourse is to cease using the Site and the Service.