Terms of Service
Last Revised: November 9, 2021
Welcome to The.com. Building the reusable web, making it simple to create, remix and launch anything digital while getting paid and earning credit for your work The following Terms of Service (“Terms of Service” or “Terms”) apply to all users of www.the.com and its associated websites, subdomains, mobile versions, any associated applications and services (collectively, the “Website”), which are operated by The.com Platform Inc. (“The.com,” “we” or “us”) (all services offered through the Website are referred to as “The.com Services” or “Services”).
The Terms for the Website represent a legally binding agreement between you, an individual user or a single entity (collectively or individually “Users”), and The.com regarding your use of the Website and Services. Together, Users and The.com are each referred to herein individually as a “Party” or collectively as the “Parties.” When using the Website, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time on the Website (the “Guidelines”). All Guidelines are incorporated by reference into these Terms. These Terms apply to all users of the Website and our services, including without limitation users who are browsers, customers, vendors, merchants, and/ or contributors of content.
BEFORE USING THE WEBSITE, PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY ACCESSING, BROWSING, USING AND/OR REGISTERING WITH THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE WEBSITE.
1. Children. You must be the age of Majority or older (18 in most states of the United States; older in some jurisdictions) to become a member of the Website. While individuals under the age of 18 (but not younger than 13) may use the Website, they must do so only with the consent and involvement of a parent or legal guardian, under such persons account and otherwise subject to these Terms. The.com does not seek through this Website to gather personal information from or about persons under the age of 13. NOTICE: Visit www.OnGuardOnline.gov for tips from the Federal Trade Commission on protecting children’s privacy online.
3. Modification of the Terms. The.com reserves the right, at our discretion, to change, modify, add or remove portions of these Terms at any time for any reason, and we may notify you of such changes through any of a variety of means, including a change to the “Last Revised” date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. Please check these Terms periodically for changes. Your continued use of the Website after the posting of changes constitutes your binding acceptance of such changes.
4. Website Access, Linking. The.com grants you permission to use its Website as set forth in these Terms, provided that and for so long as (i) you use the Website and Services solely for your internal business use, meaning use of the Website and Services within your business or organization only by you, your employees and your agents, and expressly excluding the sale, lease, license, distribution or otherwise making the Website and Services available to a third party, and not for any competing use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise use or exploit any portion of the Website in any medium without The.com’s prior written authorization; (iii) you do not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purposes; (iv) you do not engage in any of the prohibited uses as described in these Terms; and (v) you otherwise fully comply with these Terms. The Website is controlled and offered by The.com from its facilities in Boulder, Colorado in the United States of America. The.com makes no representations that the Website is appropriate or available for use in other locations. If you are accessing or using the Website from other jurisdictions, you do so at your own risk, and you are responsible for compliance with local laws.
6. Password. If you register with us, you may be asked to provide a password. As you will be responsible for all activities that occur under your account, you should keep your password confidential. The Website may implement technology that enables us to recognize you as the account holder and provide you with direct access to your account when you revisit the Website. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or The.com compatible devices, and you agree to accept responsibility for all activities that occur under your account or password. Where possible, users of public or shared devices should log out at the completion of each visit. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your email address or password), you shall immediately notify The.com. Then, you should report this incident to all of your card issuers, as well as your local law enforcement agency. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, THE.COM OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
7. Ownership; Proprietary Rights.
(a) General. The Website, including all content, visual interfaces, interactive features, audio, video, digital content, information, text, graphics, design, compilation, computer code, products, software, services, proprietary information, copyrights, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, “look and feel,” arrangement of items, and all other elements of the Website that are provided by The.com (“The.com Materials”) are owned and/or licensed by The.com and are legally protected, without limitation, under U.S. federal and state laws and regulations, as well as applicable foreign laws, regulations and treaties. The.com Materials do not include Non-The.com Content (as defined below). Except as expressly authorized by The.com, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, reverse engineer or disassemble any software or otherwise make unauthorized use of the Website or The.com Materials. The.com reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the The.com Materials, except for the limited rights expressly set forth in these Terms.
(a) Please carefully read all pricing terms in the areas of the Website that allow you to purchase our content or products. You acknowledge that entering into a transaction electronically (including without limitation all records relating to such transactions) constitutes your agreement and intent to be bound by and to pay for such agreements and transactions. The.com is not responsible for typographic errors. The price for each respective item will be clearly marked on the page and also clearly marked when you enter your credit card information to purchase. A third-party payment processor will collect your name, email address, postal address, contact details and credit or debit card information. You agree to pay all fees and applicable taxes incurred by you or anyone using your account.
(b) Price changes. We may revise the pricing for content, features or products offered through the Website at any time and impose different restrictions for the upload, storage, download and use of the Services in each price plan, including, without limitation, restrictions on network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time, number of subscribers to your content, etc. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees or content provided by us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY REFUND POLICY APPLICABLE TO OUR CONTENT OR PRODUCTS, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR OUR CONTENT OR PRODUCTS ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
(c) Accuracy of Billing. We reserve the right to refuse any order you place with us. We may, at our sole discretion, limit or cancel orders placed by person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
(d) Refund Policy. No refunds are available. The.com reserves the right to grant refunds in very limited situations in its sole discretion.
(e) Termination. Accounts terminated by us for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated. We reserve the right to immediately terminate your account at our sole discretion, and without prior notice to you if, for example, you violate the Terms. Without limiting the foregoing, if you are a repeat copyright infringer, we will, in appropriate circumstances, permanently terminate your account and remove all of your User Content from the Website.
9. User Content.
(a) General. The Website may now or in the future permit you and other Users to post or link media, text, ideas, questions, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content. The.com makes no representations that your User Content will remain available via the Website in any way. We may remove your User Content at our sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE WEBSITE IS MADE PUBLICLY AVAILABLE TO USERS OF THE WEBSITE, AND THE.COM DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
(b) Grant of Rights. By submitting User Content to The.com, you hereby grant The.com a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with the Website and The.com’s (and its successors’, transferees’, sublicensees’ and their respective affiliates’) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant The.com, transferees and sublicensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each User of the Website a non-exclusive license to access your User Content through the Website, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Website and these Terms. You understand and agree, however, that even following such termination, The.com may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.
(c) Your Representations and Warranties Including Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such User Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) your User Content is not confidential or secret, (ii) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize The.com to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by The.com and these Terms, and to grant the rights and licenses set forth in this Section, and (iii) your User Content, The.com’s use of such User Content pursuant to these Terms, and The.com’s exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation, (iv) you have no expectation of compensation or confidentiality of any nature with respect to your User Content and we, our affiliates, our licensors and/or their affiliates may already have projects under consideration or are independently developing projects that are similar to your User Content; and (v) you shall indemnify and hold us harmless from and against any and all claims, actions and damages (including, without limitation, court costs, legal fees, accounting fees and amounts paid in settlement) that are related to or result from your use of the Website, your User Content or its posting on, or submission to, the Website, and/or your violation of these Terms or your representations and warranties hereunder. You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. For the avoidance of doubt, you undertake and agree to: (1) fully comply with all applicable laws and any other contractual terms that govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or any of your end users in any of your geographical locations; (2) The.com having the sole discretion as to the means, manner, and method for performing the Services, including those regarding any hosting, transmission, publication and/or display of any platforms and/or content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto); (3) regularly and independently save any of your User Content and the information that is being processed by you regarding your platform(s), including with respect to end users, products, and any applications and/or third party services used by you; (4) The.com having the right to offer the Services in alternative price plans and impose different restrictions as for the upload, storage, download and use of the Services in each price plan, including, without limitation, restrictions on network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time, number of subscribers to your content, etc.; (5) allow The.com to use in perpetuity, worldwide and free of charge, any version of your platform(s) (or any part thereof) for any of The.com’s marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against The.com or anyone on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your platform with respect to such limited permitted uses; (6) be solely responsible and liable with respect to any of the uses of the Services that occur under your account and/or platform(s) and for any of your User Content (including for any consequences of accessing, importing, uploading, copying, using or publishing such User Content on or with respect to the Services); and (7) receive from time to time promotional messages and materials from The.com or its partners, by mail, e-mail or any other contact form you may provide us with (including your phone number for calls or text messages). If you wish not to receive such promotional materials or notices – please just notify us at any time.
(d) Prohibited Uses of User Content. Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Website: (i) any falsehoods or misrepresentations that could damage The.com or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner.
(e) No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.
10. Elements From Third-Party Websites. The Website may now or in the future allow Users to capture non-copyrightable elements or blocks from third-party websites such as portions of a layout to create a website design (“Elements From Third-Party Websites”). Should you elect to use this feature, you warrant and represent that (1) you will not copy the body of an entire third-party website; and (2) you will not engage in any unlawful copying, including, but not limited to, scraping that is expressly prohibited by the third-party website. Under no circumstances will The.com be liable in any way for or in connection with your use of the Elements From Third-Party Websites, including, but not limited to, for any intellectual property infringement or misappropriation, or for any loss or damage of any kind incurred as a result of the use of the Elements From Third-Party Websites. The Elements From Third-Party Websites become a part of The.com ecosystem and are made available to other Users.
11. Non-The.com Content Disclaimer. You understand that when using the Website you may be exposed to User Content, Elements From Third-Party Websites, advertising and other third party content (together, the “Non-The.com Content”) from a variety of sources and that you may be exposed to Non-The.com Content that is inaccurate, offensive, indecent, or otherwise objectionable. The.com does not endorse any Non-The.com Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will The.com be liable in any way for or in connection with the Non-The.com Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-The.com Content, any intellectual property infringement or misappropriation with regard to any Non-The.com Content, or for any loss or damage of any kind incurred as a result of the use of any Non-The.com Content posted, emailed or otherwise displayed or transmitted through the Website.
12. Non-Monitoring of Users and Non-The.com Content. You understand that you, and not The.com, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available through the Website. The.com does not control Non-The.com Content posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Non-The.com Content for any purpose. If at any time The.com chooses, in its sole discretion, to monitor the Non-The.com Content, The.com nonetheless assumes no responsibility for the Non-The.com Content, no obligation to modify or remove any inappropriate Non-The.com Content, no obligation to continue to monitor the Non-The.com Content and no responsibility for the conduct of the User or other person or entity submitting any such Non-The.com Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-The.com Content, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Non-The.com Content.
13. Removal of Non-The.com Content. The.com and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-The.com Content that is available on the Website in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
14. Prohibited Uses of the Website.
(a) As a condition of your use of the Website, you hereby represent and warrant that you will not use the Website for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.
(b) You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Website, use of the Website, access to the Website, or Non-The.com Content obtained through the Website, except as expressly permitted in these Terms.
(c) You agree not to use the Website if you do not meet the eligibility requirements described in Section 1 above.
(d) You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Website, or collect, or attempt to collect, personal information about Users or third parties without their consent.
(e) You agree not to intentionally interfere with or damage, impair or disable the operation of the Website or any User’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Website with the intended result of denying service to other Users.
(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of the Website, features that prevent or restrict the use or copying of any part of the Website, or features that enforce limitations on the use of the Website.
(g) You agree not to attempt to gain unauthorized access to the Website or any part of it, including gaining access or attempting to gain access to another user’s account, computer systems or networks connected to the Website or any part of it, through request, hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Website or any activities conducted through the Website.
(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Website. You agree neither to modify the Website in any manner or form (other than contributing User Content and Elements From Third-Party Websites as enabled by the Website’s functionality and in accordance with these Terms), nor to use modified versions of the Website, including (without limitation) for the purpose of obtaining unauthorized access to the Website or for the removal of any proprietary notices or labels on the Website.
(i) You agree that you will not use any robot, spider, scraper, or other automated means to access the Website for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Website.
(j) You agree not to use framing techniques to enclose any trademark, logo, or other The.com Materials without our express prior written consent. You agree not to use any meta tags or any other “hidden text” using The.com’s name or trademarks without The.com’s express prior written consent.
(k) You agree not to use any The.com logos, graphics, or trademarks as part of the link without our express prior written consent.
(l) You agree not to sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Website to any third party.
(m) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Website or to insert your own or a third party’s advertising, branding or other promotional content on the Website. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(n) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(o) You agree not to use the Website in any manner that could interrupt, damage, disable, overburden or impair the Website, or interfere with any other party’s use and enjoyment of the Website, including, without limitation, sending mass unsolicited messages or “flooding” servers.
(p) You agree not to modify, adapt, translate, or create derivative works based upon the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(q) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(r) You agree not to use the Website to “stalk” or otherwise harass or harm another in any way.
(s) You agree not to post, transmit or otherwise disseminate through the Website any User Content that, as we determine at our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights, (ii) is derogatory or harmful to our reputation, the reputation of our licensors, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner.
Unauthorized or prohibited use of the Website or the The.com Materials may subject you to civil liability, criminal prosecution, or both under federal, state and local laws. All Users are permitted to flag any content that violates the Terms of Service or posting guidelines. The.com has the right, but not the obligation to remove such content.
15. Social Media Component. In certain sections of the Website, you may be able to post your comments on the Website from Facebook, Instagram or other social media websites. For example, your friends and others who have access to view information about you on these social media websites will be able to see (on the social media website and on our Website) that you posted a comment. You’ll also be able to see similar information about you or your social media friends who are connected to our Website. In addition, our Website may personalize and otherwise enhance your experience based on your social media information, such as your basic information, likes and interests. Please pay careful attention to your social media settings in your account as well as your privacy settings on this Website which will impact this feature and may give you some control over the information that is shared and who it is shared with. See the respective social media privacy policies for more information.
16. Linking to the Website. We reserve all of our rights under the law to insist that any link to the Website be discontinued, and to revoke your right to link to the Website from any other website at any time.
17. Service Availability; Timeliness of Information. The.com may make changes to or discontinue any of the The.com Materials, Services, web communities or content available on the Website at any time, and without notice, and The.com makes no commitment to update these materials on the Website.
This Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Website at any time, but we have no obligation to update any information on our Website. You agree that it is your responsibility to monitor changes to our Website.
18. Service Testing. From time to time, we test various aspects of the Website, including the platform, user interfaces, service levels, plans, promotions, features, availability of The.com Materials and pricing, and we reserve the right to include you in or exclude you from these tests without notice.
19. Feedback. You agree that with respect to any contest entries, feedback, analysis, suggestions and comments to The.com provided by you (collectively, “Feedback”), IN CONSIDERATION OF THE.COM PROVIDING ACCESS TO THE WEBSITE FREE OF CHARGE, USER HEREBY GRANTS TO THE.COM THE EXCLUSIVE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing grant to The.com and that any Feedback which is provided by User to The.com does not infringe any third-party intellectual property or any other rights. Notwithstanding the foregoing, The.com grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.
20. Termination. These Terms are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Website. You agree that The.com, in its sole discretion, may terminate any account (or any part thereof) you may have through the Website or your use of the Website, and remove and discard all or any part of your account or any User Content. You agree that your access to the Website or any account you may have or portion thereof may be terminated without prior notice, and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to the Website (or any part thereof). You also agree that The.com shall not be liable to you or any third-party for any such termination. The.com reserves the right to modify, suspend or discontinue the Website and/or access to it at any time and without notice to you, and The.com will not be liable to you should it exercise such rights, even if your use of the Website is impacted by the change. These remedies are in addition to any other remedies The.com may have at law or in equity.
21. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE.COM AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE WEBSITE OR NON-THE.COM CONTENT; (II) YOUR USER CONTENT, INCLUDING THE.COM’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT. THE.COM RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF THE.COM. THE.COM WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
22. DISCLAIMERS; NO WARRANTIES.
(A) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 22, AND SECTIONS 23 AND 24 BELOW, THE TERM “THE.COM” INCLUDES EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(B) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE.COM DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE.COM OR THROUGH THE WEBSITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(C) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, THE.COM MATERIALS, USER CONTENT AND NON-THE.COM CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(D) WEBSITE OPERATION AND NON-THE.COM CONTENT. THE.COM DOES NOT WARRANT THAT THE THE.COM MATERIALS, USER CONTENT, NON-THE.COM CONTENT, WEBSITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, HACKING, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(E) LOSS OF CONTENT AND DATA. If your account or any Services are cancelled (whether at your request or at The.com’s discretion, including, but not limited to, if you or The.com decommissions your account for any reason or if you fail to timely make any required payment), it may cause or result in the loss of certain content, features, or capacity of your account, including any User Content or other usage data retained therein (“Content Loss”). The.com shall not be liable in any way for such Content Loss, if any, or for saving a backup of your account or User Content. Please also note that additional fees may apply to the reactivation of an account and/or any The.com Services following their cancellation, as determined by The.com in its sole discretion.
(F) ACCURACY. THE.COM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(G) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE (INCLUDING RSS FEEDS) IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
(H) THE.COM MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE.COM READY DEVICES OR THE COMPATIILITY OF THE DEVICE WITH OUR SERVICE. Additional disclaimers or limitations of liability may be contained in the various software end license agreements you have agreed to by using our service.
23. LIMITATION OF LIABILITY AND DAMAGES.
(A) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE.COM OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS, BE LIABLE FOR PERSONAL INJURY OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE THE.COM MATERIALS AND USER CONTENT ON THE WEBSITE, THE WEBSITE ITSELF, OR ANY OTHER INTERACTIONS WITH THE.COM, EVEN IF THE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) LIMITATION OF DAMAGES. IN NO EVENT SHALL THE.COM OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS (USD $100).
24. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(A) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(B) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT THE.COM HAS OFFERED ITS CONTENT AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE.COM, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE.COM. YOU ACKNOWLEDGE AND AGREE THAT THE.COM WOULD NOT BE ABLE TO PROVIDE THE WEBSITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
25. Digital Millennium Copyright Act Compliance (“DMCA”).
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Non-The.com Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Website and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Website;
4. Information reasonably sufficient to permit The.com to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. 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
6. 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.
The.com’s designated Copyright Agent to receive notifications of claimed infringement is: The.com Copyright Agent, firstname.lastname@example.org.
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b) Notice and Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below. We may, at our discretion, deny access to the Website by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on the Website was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
1. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
2. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that The.com has removed or to which The.com has disabled access.
2. Provide your full name, address, telephone number, email address and, if you are a registered User, the Username of your The.com account.
3. Provide a statement that you consent to the jurisdiction of the Southern District of New York and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above or an agent of such person.
4. Include the following statement: “I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following email address: email@example.com.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant. After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Website. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Website is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(f) DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. The.com may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Website. If Notice is by email or mail, it will be provided to the email or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless The.com is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide The.com with notices only by email at firstname.lastname@example.org.
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law.
(c) Jurisdiction. For any dispute you have with us, you agree to first contact us through email email@example.com and attempt to resolve the dispute with us informally. If we have not been able to resolve the dispute with you informally, we each agree that any action at law or in equity arising out of or relating to these Terms or the Website shall be filed only in the state or federal courts of New York County within the State of New York and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION UNDER THIS AGREEMENT, YOUR USE OF THE WEBSITE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
(d) Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If, for any reason, we believe, have reason to believe, suspect or are notified of any act, omission or circumstances which may or could (i) compromise or endanger the health, well-being or safety of any person, (ii) cause or lead to damage to persons or property (tangible or intangible), (iii) adversely affect, infringe upon or misappropriate the rights of others, (iv) harass or interfere with any other user or person, firm or enterprise, (v) interfere with or bypass our security or other protective measures applicable to our systems, networks and communications capabilities, (vi) breach or violate these Terms, or (vii) violate any law or regulation, we have the right, reserving cumulatively all other rights and remedies available to us at law, in equity and under this agreement with you, to report and provide information to any and all regulatory and law enforcement authorities and agencies and take any action permitted by law.
(e) Class Action Waiver. You shall not have the right to bring any claim against The.com as a plaintiff or a member of a class, consolidated or representative actions (or any other legal proceedings conducted by a group or by representatives on behalf of others). All disputes between User and The.com shall be resolved on an individual basis.
(f) 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. The failure of The.com to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(g) Notice for California Users.
Under California Civil Code Section 1789.3, users of our Website service from California are entitled to receive the following information on how to resolve a complaint regarding the Website service or to receive further information regarding use of the Website service:
(1) The name, address, and telephone number of the provider of service.
(2) Any charges to the consumer imposed by the provider for the use of the service.
(3) The procedures a consumer may follow in order to resolve a complaint regarding the service or to receive further information regarding use of the service, including the telephone number and address of the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs.
Such complaints or requests may be submitted to The.com via email at: firstname.lastname@example.org.
(h) 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.
(i) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by The.com without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(j) Headings. The heading references herein 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.
(k) Entire Agreement. This is the entire agreement between you and The.com relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any other agreements that you may have entered into with The.com. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by The.com as set forth in Section 3 above. All rights not expressly granted in these Terms are reserved to us.
Thank you for your business. Questions? Please email us at email@example.com.
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