Terms of Use
Last Updated: October 20, 2020
PLEASE READ THESE TERMS OF USE CAREFULLY. The following Terms of Use Agreement ("Agreement") between you (sometimes referred to as "you" or "your") and XYZ Media, Inc. ("we," "our," "us," or "XYZ Media") describes the terms and conditions on which you may access and use our website and any other website, blog, page, section, or feature that links to this Agreement (collectively, the "Site"), our mobile application (the "App"), and all related services, software, or features (the Site together with the App, collectively, the "Services").
By accessing and using any of the Services, you acknowledge that you have read, understood and agree to be bound by the terms and conditions of this Agreement. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT: THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION IN SECTION 19 REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. BY AGREEING TO THIS AGREEMENT, YOU AND XYZ MEDIA HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
DO NOT ACCESS THE WEBSITE IF YOU DO NOT AGREE TO THESE TERMS OF USE.
- REVISIONS TO THIS AGREEMENT
We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Services. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of our Services will constitute your agreement to any new provisions within the revised Agreement.
- THE PURPOSE OF THE SERVICES
We offer the Services to you as an informational service only. The design and function of the Services and the content contained therein, such as text, blog posts, graphics, images, audio and video files, user help files, user interface, layout and presentation, analytic and demographic data relating to your use of the Services, and other material contained in the Services are for informational purposes only.
- YOUR USAGE OF THE SERVICES
On the condition that you comply with all of your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely in connection with your personal, non-commercial, and lawful purposes. We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted herein and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. Your access to these Services is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any XYZ Media Content (defined below) or services we provide on the Services without notice.
- XYZ MEDIA INTELLECTUAL PROPERTY
The Services contain copyrighted material, trademarks and other proprietary information, including, but not limited to, software, text, graphics and images (collectively, the "XYZ Media Content"). We may own the XYZ Media Content, or portions of the XYZ Media Content may be made available to us through arrangements that we have with third parties. The XYZ Media Content is protected by United States and foreign intellectual property laws. Unauthorized use of the XYZ Media Content may result in violation of copyright, trademark or other laws. You have no rights in the XYZ Media Content, and you may not copy, redistribute, retransmit, publicize or make commercial or non-commercial use of the XYZ Media Content without our express written permission. The use or posting of any of the XYZ Media Content on any other website or in a networked computer environment for any purpose is expressly prohibited. You must retain all copyright and other proprietary notices contained in the original XYZ Media Content on any copy you make of the XYZ Media Content. For clarity, there is no prohibition against you maintaining hyperlinks on your own website(s) that lead visitors to a page on the Services.
The trademarks, service marks, and logos used and displayed on the Services are the registered and unregistered trademarks or service marks of ours or of our third-party partners (collectively, the "Mark(s)"). Nothing in this Agreement should be construed as granting any license or right to use any Marks without our prior written consent specific for each such use. The Marks may not be used to disparage any party or their respective products or services, or in any manner that may damage any goodwill in the Marks. All goodwill generated from the use of any Mark shall inure to the benefit of the Mark owner.
For the avoidance of doubt, as between you and XYZ Media, the Services, including the XYZ Media Content, Marks, and all intellectual property rights in and to the Services, XYZ Media Content, and Marks, and any changes, modifications or corrections thereto, are the property of XYZ Media and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any XYZ Media Content or Marks, through the use of framing or otherwise, except: (a) as expressly permitted by this Agreement; or (b) with the prior written permission of XYZ Media or such third party that may own such XYZ Media Content.
- YOUR RESPONSIBILITIES
You agree that when using the Services, you will not:- (a) Delete, modify, hack, or attempt to change or alter any of the XYZ Media Content or notices on the Services;
- (b) Use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person's use of Services;
- (c) Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason;
- (d) Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services is based;
- (e) Introduce into the Services any virus, rogue program, trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to disable, erase, or otherwise harm the Services or XYZ Media Content, or perform any such actions;
- (f) Introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person;
- (g) Use any XYZ Media Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- (h) Access or attempt to access any other person's information or content, or collect personal or otherwise identifying data about other users for any reason whatsoever;
- (i) Send any chain letters, junk mail, unauthorized e-mail, or advertisements;
- (j) Encourage any illegal activities, or post anything that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity;
- (k) Decrypt, transfer, frame, display, or translate any part of the Services;
- (l) Connect to or access any of our computer systems or networks without authorization; or
- (m) Use the information in the Services to create or sell a similar service or similar information.
- YOUR CONTENT
Any information, comments, postings, text, images, messages, files, and/or other materials you post, transmit through, or link from the Services (collectively, "Your Content") are your sole responsibility. We do not pre-screen or approve Your Content and we have no obligation to monitor Your Content. However, we reserve the right to review, modify, monitor, distribute, remove, or delete any of Your Content at our sole discretion. We reserve the right at all times and in our sole discretion to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process, or governmental request or to edit, refuse to post, or to remove any information or materials, in whole or in part. Without limiting the generality of the foregoing, with respect to Your Content, you may not upload, post, or transmit any:- (a) Content that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, unduly repetitious, or embarrassing to any other person or entity;
- (b) Message, data, code, or software that would violate our, or any third party, proprietary or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential proprietary information, or use trademarks or service marks in an infringing fashion;
- (c) Photos or video of any third party without express, written permission, and by uploading, transmitting, or posting any photo or video on or through the Services, you represent and warrant that you have express, written permission from all persons appearing in the media for all of our potential uses of such media;
- (d) Advertisements or solicitations of business, conduct, or services that would in any manner constitute threatening, harassing, harmful, or abusive behavior, or chain letters, pyramid schemes, or bulk e-mail lists;
- (e) Materials that are fraudulent, involve the sale of counterfeit or stolen items, or could cause us to violate any applicable law, statute, ordinance, or regulation.
YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OR ANY ACTIVITIES ASSOCIATED WITH ANY OF YOUR CONTENT. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON YOUR CONTENT OR OTHER CONTENT YOU FIND ON THE SERVICES ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR YOUR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF YOUR CONTENT MADE AVAILABLE ON THE SERVICES. YOU AGREE TO INDEMNIFY US AND OUR AFFILIATES AND BUSINESS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS FROM ANY AND ALL CLAIMS, DAMAGES, EXPENSES, FEES, LIABILITIES, AND LOSSES, INCLUDING ATTORNEYS' FEES, ARISING FROM ANY SUCH MATERIALS OR ANY FAILURE TO COMPLY WITH THIS SECTION.
- ACCESS THROUGH MOBILE DEVICES
Your contract with your mobile network provider ("Mobile Provider") will continue to apply when accessing or using the Services on your mobile, handheld device ("Mobile Device"). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
- THIRD PARTY WEBSITES AND ADVERTISING
The Services contain links to third party websites and advertising ("External Sites"). These links are provided only as a convenience to you and not as an endorsement by us of any of the XYZ Media Content on such External Sites. We do not control the External Sites and are not responsible for any of their content. You should take precautions when downloading files from External Sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You should contact the site administrator or webmaster for these External Sites with any questions or concerns you have regarding their content, terms of use, or privacy policies.
- YOUR PRIVACY
The XYZ Media Privacy Policy describes how we collect and use your personally identifiable information generated from the Services. When you use the Services, information transmitted over the Internet is beyond our control. Although we take reasonable steps, including the implementation of physical, organizational, and technical controls, to protect your information, you acknowledge and agree that you provide any information, including personally identifiable information, to the Services at your own risk.
- SYSTEM UNAVAILABILITY
There may be times when the Services are unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Services will always be available or are completely free of human or technological errors.
- ERRORS
The Services may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Services or any information supplied to you via the Services, or that files available through Services are free of viruses, worms, trojan horses, or other code that include or manifest contaminating or destructive characteristics.
- COMPATIBILITY
You must provide the equipment and Internet connections necessary to access the Services at your own expense. We do not guarantee that the Services will operate with your computer, Mobile Device, internet service plans, or Mobile Provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.
- NO GUARANTEES
THE SERVICES AND OUR XYZ MEDIA CONTENT (COLLECTIVELY, THE "SYSTEM") ARE PROVIDED "AS IS". WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SYSTEM; (II) ANY ADVICE YOU GLEAN FROM THE SYSTEM; OR (III) ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE THROUGH THE SYSTEM. WE DO NOT PROMISE THAT THE SYSTEM WILL BE UNINTERRUPTED, OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT.
- WE ARE NOT LIABLE TO YOU FOR YOUR USE OF THE SERVICES
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.
XYZ MEDIA AND ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES OR SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE "XYZ MEDIA PARTIES"), WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SYSTEM OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SYSTEM AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE XYZ MEDIA PARTIES.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES WILL BE TO STOP USING THE SERVICES. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICES, THAT SUCH USAGE IS AT YOUR SOLE RISK AND YOU ACCEPT THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT, INCLUDING THE LIMITATION OF LIABILITY AND DISCLAIMERS SET FORTH HEREIN. IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF XYZ MEDIA PARTIES FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONE HUNDRED DOLLARS ($100.00).
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST XYZ MEDIA.
- INDEMNIFICATION
You agree to defend, indemnify and hold harmless the XYZ Media Parties from and against all claims, actions, demands and expenses, including, without limitation, reasonable attorneys' and accounting fees, arising from your access to, use or misuse of the XYZ Media Content or Services. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests in assisting our defense of such matter.
- YOUR REPRESENTATIONS AND WARRANTIES
You represent, warrant, and covenant that you have the legal right to enter into this Agreement and to use the Services according to the terms and conditions of this Agreement. If you are accepting this Agreement and using the Services on behalf of another company or entity, you agree that such company or entity will be bound by this Agreement. Additionally, you represent, warrant, and covenant that all information you provide to us in connection with this Agreement or your use of the Services, including but not limited to personal information, is current and correct.
- YOUR COMPLIANCE WITH APPLICABLE LAWS
We make no claims concerning whether the XYZ Media Content may be downloaded or viewed, or is appropriate for use outside of the United States. If you access the Services or the XYZ Media Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the XYZ Media Content to countries or persons prohibited under the export control laws. By downloading the XYZ Media Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the XYZ Media Content.
- AGREEMENT TO ARBITRATE
All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement) or our operation of the Services shall be resolved by final and binding arbitration to be held in the English language in the City of Bellingham, Washington, pursuant to the rules of the American Arbitration Association. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part, of this Agreement is void or voidable. Further, if you are located outside of the United States, we retain the right to bring proceedings against you for breach of this Agreement in your country of residence or any other appropriate country.
Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to this Agreement may obtain preliminary injunctive relief in the Whatcom County District Court, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration claim or other proceedings by or between you and XYZ Media shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this class action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
- COPYRIGHT INFRINGEMENT
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 you believe in good faith that materials on the Services infringe your copyright, and that the use of such materials is not fair use, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see www.copyright.gov for details). Notices and counter notices with respect to the Services should be sent to the Contact information listed at the bottom of this Agreement.
- MISCELLANEOUS
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services or the XYZ Media Content at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services or the XYZ Media Content at any time without prior notice or liability.
As we develop our business, we might sell or buy businesses or assets. In connection with a corporate sale, merger, reorganization, dissolution or similar event, we may assign or transfer this Agreement to the person or entity acquiring the applicable assets or succeeding to the applicable business. In the event of any such transaction, this Agreement shall remain in full force and effect and shall be binding on you and any such successor and/or assign.
The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, accomplishes the intentions of the original provision. Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver of any breach or default hereunder shall be effective against us unless made in writing, nor shall any such waiver be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement shall be governed by the laws of the State of Washington without regard to conflicts of law principles. Any disputes regarding this Agreement must be brought in the state or federal courts located in Washington, and the parties hereby irrevocably consent to the jurisdiction and venue of any such court in any such action or proceeding. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous written or oral agreements between the parties with respect to such subject matter. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
- CONTACT
If you have any questions concerning this agreement, please contact us using one of the methods specified below.
XYZ Media, Inc
11 Bellwether Way #107
Bellingham, WA 98225