1-800-N0TH1NG TERMS OF SERVICE
Effective Date: June 22, 2018
SECTION 1 – GENERAL INFORMATION
1.1 – Terms of Service Binding
The Services are intended solely for users who are thirteen (13) years of age and older. The Services are not available to residents of Quebec. Individuals who are under the age of eighteen (18) may access the Services only with the knowledge and consent of a parent or legal guardian, under such person’s Account, and otherwise in accordance with these Terms of Service. Certain parts of the Service may be subject to heightened age and/or other eligibility requirements.
1.2 – License to Use
1-800-N0TH1NG grants you a non-exclusive, non-transferable, limited right and license to access, use and privately display the Services and the materials thereon, including the “Services Content” (as defined below) for your personal use only, provided that you comply fully with these Terms of Service. You may “cache” pages of the Services for the sole purpose of increasing the speed and efficiency at which you access the Services in the future. You shall not interfere or attempt to interfere with the operation of the Services in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly prohibited by any provision of these TOS.
1.3 – Changes to the Services and/or Terms of Service
1-800-N0TH1NG reserves the right, in its sole discretion, to modify, update, add to, discontinue, remove or otherwise change any portion of the Services, these TOS, or the Other Policies, in whole or in part, at any time. When 1-800-N0TH1NG amends these TOS, it will revise the “last updated” date located at the bottom of these TOS for an amount of time that we determine in our discretion. For material changes to these TOS, 1-800-N0TH1NG may notify you by displaying a notice when you first use the Services after such changes have been made. We may also, at our discretion, provide notification of changes by other means. If you use the Services in any way after these TOS or Other Policies have been changed, you will be deemed to have unconditionally consented and agreed to such changes. The most current version of these TOS will be available on the Website and will supersede all previous versions of these TOS.
1.4 – Changes in Services Ownership
1.5 – Linked Websites
The Services may contain links to third party websites or resources, which may or may not be obvious (“Third Party Sites”) as well as software, text, graphics, articles, photographs, pictures, designs, sound, video, music, information, software applications and other content originating from third parties (collectively, “Third Party Applications, Software or Content”). Our provision of links to Third Party Sites is not an endorsement of any information, product or service that is offered on or reached through such Third Party Site or Third Party Application, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any Third Party Sites accessed through the Services or any Third Party Applications, Software or Content posted on, available through or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. If you decide to leave the Services and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern.
1.6 – No Resale / Exploitation by Licensee
You may not reproduce, copy, resell, manipulate, or exploit any part of the Services or the “Services Materials” (as defined below), for any commercial purpose.
1.7 – Account Termination / Prohibited Access
1-800-N0TH1NG may, in its sole discretion and at any time, with or without notice, terminate your password, Account or use of any Community Feature, and discard and remove any “Community Content” (as defined below) posted or submitted by you to any Community Feature, for any reason or no reason. 1-800-N0TH1NG may also, in its sole discretion and at any time, with or without notice, discontinue any Community Feature or limit or restrict any User access thereto, for any reason or no reason at all. Should 1-800-N0TH1NG take any of these actions, it may, in its sole discretion, immediately deactivate your Account. Following deactivation, 1-800-N0TH1NG will delete all information about and concerning your Account, including your “Registration Information” (as defined below) and submitted Community Content, unless 1-800-N0TH1NG is required to store such information for the protection and pursuit of its legal rights and obligations under any laws that are applicable to its operations. Additionally, if your access to the Services has been terminated or suspended by 1-800-N0TH1NG for any reason, you are not eligible to enter or participate in any 1-800-N0TH1NG programs or promotions (including, without limitation, any sweepstakes, contests or giveaways) or to win any prizes. You understand and agree that 1-800-N0TH1NG shall not have any liability to you or any other person for any suspension or termination of your access to any Community Feature and/or the removal of information concerning your Account.
1.8 – Governing Law and Disputes
These TOS shall be governed by, and construed in accordance with, the laws of the State of California and the United States of America, without giving effect to any choice of law or conflict of law principles that would result in the application of any other State’s laws.
By using the Services in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against 1-800-N0TH1NG or the officers, directors and employees of 1-800-N0TH1NG and its parent, subsidiaries, affiliates (all such individuals and entities collectively referred to herein as the “Company Entities”) arising out of, relating to, or connected in any way with the Services or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Los Angeles, California; (4) the arbitrator’s decision shall be controlled by the terms and conditions of these Terms of Service and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Services; (5) the arbitrator shall apply California law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Company Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive damages against you or any Company Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Company Entity exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, 1-800-N0TH1NG agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor 1-800-N0TH1NG shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
The Services are controlled and operated by 1-800-N0TH1NG from its offices within the State of California, United States of America (“U.S.A.”). 1-800-N0TH1NG makes no representation that the Services and/or the Services Content, including merchandise offered for sale on the Services, and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the U.S.A. Those who choose to access the Services from locations outside of the U.S.A. do so on their own initiative and at their own risk, and are responsible for compliance with local laws. Use of the Services, and the Websites is void where prohibited by applicable law, and void in the Province of Quebec, Canada. With respect to shipments of merchandise to consumers, wherever they may reside, title to the merchandise and risk of loss shall pass to the buyer upon delivery of the merchandise to the common carrier.
Software from the Services is further subject to United States export controls. No software from the Services may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) North Korea, Iran, Syria, Sudan or any other country subject to U.S. embargo or trade sanctions; or (ii) 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, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
SECTION 2 – INTELLECTUAL PROPERTY
2.1 – Ownership of trademarks, copyrights and patents
As between Users and 1-800-N0TH1NG, Services Content is different from “Community Content”. “Community Content” consists of User-generated content, information, and materials of any kind or nature that is included or posted by Users in the Community Features sections of the Website or an Application (collectively, “Community Content“). The Services and all of the content the Services contain, or may in the future contain, including but not limited to all copyrights, trademarks, service marks, trade names and patents (collectively, the “Services Content“) is proprietary to 1-800-N0TH1NG and its affiliates. The Services Content and the programming codes associated therewith (“Services Code“) as they exist on the Services are offered to you by 1-800-N0TH1NG for limited and restricted use pursuant to these TOS. Services Content and Services Code are collectively referred to herein as the “Services Materials“. Any use of the Services Materials other than as permitted by these TOS will constitute a violation of these TOS and may constitute copyright and/or patent infringement.
The Services Materials are owned by 1-800-N0TH1NG and/or its licensors and content providers, and are protected by copyright, trademark, publicity and other laws and by international treaties. Unless expressly permitted in writing by 1-800-N0TH1NG, you shall not capture, reproduce, perform, transfer, sell, license, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit in whole or in part any Services Materials. You agree not to use the Services Materials for any unlawful purposes.
Without in any way limiting the generality of the foregoing, use of the Services Materials on any third-party website or other networked computer environment is prohibited without prior written permission from 1-800-N0TH1NG.
2.2 – Use of Software
2.3 – Submissions
1-800-N0TH1NG is pleased to hear from its Users and welcomes your comments regarding 1-800-N0TH1NG’s Services and products. Nevertheless, 1-800-N0TH1NG’s long-standing company policy does not allow it to accept or consider creative ideas, suggestions, or materials other than those it has specifically requested (see below). While we value your feedback of our Services and products, we request that you be specific in your comments of those Services and products, and that you not submit any creative ideas, suggestions, or materials. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by 1-800-N0TH1NG’s or its affiliates’ professional staff might seem to others to be similar to their own creative work. Accordingly, we ask that you do not send us any original creative materials such as game concepts/treatments, stories or character ideas, screenplays, or original artwork.
If you send or post certain specific submissions at our request (e.g., via message boards or in connection with contests) or if you send us creative suggestions, ideas, notes, drawings, concepts, or any other information (each, a “Submission” and collectively, the “Submissions“) despite our request that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. For purposes of this Paragraph 2.3, all Community Content shall be deemed included in the definition of Submissions. None of the Submissions shall be subject to any obligation of confidentiality on the part of 1-800-N0TH1NG, and 1-800-N0TH1NG shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by 1-800-N0TH1NG without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. 1-800-N0TH1NG shall have and is irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit. By submitting a Submission to the Services or 1-800-N0TH1NG, you represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. All Submissions to the Services and/or 1-800-N0TH1NG shall be the sole property of 1-800-N0TH1NG and will not be acknowledged or returned. You agree and understand that 1-800-N0TH1NG is not obligated to use any Submission you make to the Services or 1-800-N0TH1NG and you have no right to compel such use. You hereby acknowledge and agree that your relationship with 1-800-N0TH1NG is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to 1-800-N0TH1NG does not place 1-800-N0TH1NG in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that 1-800-N0TH1NG has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by 1-800-N0TH1NG’s own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of 1-800-N0TH1NG’s use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of a 1-800-N0TH1NG’s actual or alleged exploitation or use of any material you submit to the Services and/or 1-800-N0TH1NG, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law. Applicable law may restrict or limit the foregoing provisions of this paragraph. If so, without limitation of the foregoing, you agree that in no event shall 1-800-N0TH1NG’s liability exceed $5,000.
2.4 – Copyright Notice
If you are a copyright owner and believe that any Services Materials or Community Content appearing on the Services or in any Community Feature has been copied in a way that infringes upon your copyrights, you may submit a notification to 1-800-N0TH1NG pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing the following information in writing (see 17 U.S.C. 512(c)(3) for further detail) to the Copyright Agent named below:
· Your name, address, telephone number, and email address;
· A description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
· The exact URL or a description reasonably sufficient to permit 1-800-N0TH1NG to locate where the alleged infringing material is located;
· A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
· A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
2150 Colorado Avenue
Santa Monica, CA 90404
Attn: 1-800-N0TH1NG, Business Affairs
Upon receipt of the written notification as outlined above, 1-800-N0TH1NG will use good faith, reasonable efforts to remove the material that is alleged to be infringing and forward a copy of the written notification to the alleged infringer. The alleged infringer has the right to file a counter-notification by providing the designated agent with the following information: (1) a physical or electronic signature; (2) identification of the material that has been removed the location at which the material appeared before it was removed; (3) a statement under penalty of perjury that he/she has a good faith belief that the material was removed as a result of mistake or misidentification of the material to be removed; and (4) his/her name, address, and telephone number, and a statement that he/she consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if his/her address is outside of the United States, for any judicial district in which the service provider may be found, and that he/she will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. By this filing, 1-800-N0TH1NG seeks to preserve any and all exemptions from liability that may be available under the DMCA or otherwise but does not necessarily stipulate that it is a service provider as defined in 17 USC § 512c or elsewhere in the law.
SECTION 3 – COMMUNITY FEATURES
Section 3.1 – General Community Information
In consideration for your use of the Community Features and functionality, you agree to: (i) comply with the “Community Guidelines” set forth below; (ii) provide 1-800-N0TH1NG with accurate, complete and true information about yourself as required on the registration form (your “Registration Information“) in order to create your Account; and (iii) maintain and update, as applicable, your Registration Information with current and complete information. Users who violate the Community Guidelines, or provide inaccurate, false, or non-current Registration Information may, at 1-800-N0TH1NG’s sole discretion, have their Accounts suspended or terminated, and may be permanently banned from using the Services and/or any other 1-800-N0TH1NG service, and may be subject to any other penalty determined by 1-800-N0TH1NG.
As part of your Account, you will be responsible for creating and maintaining the confidentiality of, your username and password. We ask that you select a username other than your real name or the real name of any other person. We also urge you to memorize your password or keep it in a secure place, away from the rest of your Account information, as sharing your password with others may lead to unauthorized access to your Account information. You are responsible for all activity occurring under your Account. You agree that you will: (i) immediately notify 1-800-N0TH1NG of any unauthorized use of your username or password; and (ii) ensure that you properly exit a Community Feature at the completion of your session. 1-800-N0TH1NG shall have no liability for any loss or damage arising from your Account or your failure to comply with these requirements.
Section 3.2 – Profiles, Buddy Lists, Comment Walls, Virtual Assets and Private or Public Communications
To enhance User experience, 1-800-N0TH1NG provides or may provide, at its sole discretion, one or more chat areas, message boards, e-mail functions, messaging services, file communities, virtual communities featuring digital or virtual assets, polls, surveys, and other services (collectively, the “Community Features”). Community Features are provided by 1-800-N0TH1NG to you and others subject to the TOS, the “Community Guidelines” set forth below and the Other Policies. The User who posts Community Content in the Community Features is responsible for the reliability, accuracy and truthfulness of such Community Content, and 1-800-N0TH1NG has no control over such Community Content. Additionally, 1-800-N0TH1NG has no control over whether any such posted material is of a nature that Users will find offensive, distasteful or otherwise unacceptable and expressly disclaims any responsibility for such material.
ENTERING ANY COMMUNITY FEATURE WILL CONSTITUTE ACCEPTANCE OF THE COMMUNITY GUIDELINES. IF YOU DO NOT AGREE TO ABIDE BY THE COMMUNITY GUIDELINES, PLEASE DO NOT ENTER ANY COMMUNITY FEATURES.
Section 3.3 – Community Guidelines
You are entirely responsible and liable for all activities conducted that are associated with your Account within the Community Features, including the transmission, posting, or other provision of Community Content to any portion of the Community Features. Listed below are some, though not all, violations that may result in 1-800-N0TH1NG terminating or suspending your access to Community Features on a temporary or permanent basis, as determined by 1-800-N0TH1NG in its sole discretion (“Community Guidelines”). You agree not to do any of the following actions while using any of the Community Features:
· Violate these Community Guidelines or abuse the community purpose of the chat areas.
· Participate in any part of the Services if you are under the age of 13.
· Use profanity, obscenities, or **asterisks**, (((echoes))) or other “masking” characters to disguise profane, obscene or offensive words.
· Use obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening and harassing language of any kind.
· Impersonate other Users.
· Attack (flame or “cyberbully”) individuals, companies or products, although you are otherwise welcome to offer your opinions or comments on the subject at hand.
· Post topics on message boards, on the Services or within any of the Community Features that are unrelated to the subject of the Services.
· Advertise or promote other companies or URLs.
· Share Personal Data (e.g. your name, phone number, home address, password, etc.) with other users on the Services.
· Include advertising in communications.
· Post material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant 1-800-N0TH1NG all of the license rights granted herein.
· Include advanced fonts, java, tables, html, or other programming codes or commands in messages.
· Distribute or otherwise publish any Community Content containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. You also hereby acknowledge that you are prohibited from soliciting other guests to join or become members of any commercial online service or other organization.
· Collect or harvest the information (including Personal Data) of any User or otherwise access the Services using automated means (including but not limited to harvesting bots, robots, spiders or scrapers).
Information disclosed in Community Features is, by design, revealed to the public. 1-800-N0TH1NG is not responsible for any information you choose to disclose to others. 1-800-N0TH1NG reserves the right, but not the obligation, to remove any posts for any reason. 1-800-N0TH1NG does not endorse the Community Content in the Community Features and specifically disclaims any responsibility or liability to any person or entity (including, without limitation, persons who may use or rely on such material) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character based upon or resulting from any Services Materials or Community Content provided through a Community Feature. Without in any way limiting the generality of Paragraph 2.3 of these TOS, by posting or uploading Community Content to any Community Feature or submitting any other Community Content to 1-800-N0TH1NG, you automatically grant (or warrant that the owner of such rights has expressly granted) 1-800-N0TH1NG a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such materials or incorporate such Community Content into any form, medium, or technology now known or hereafter devised. In addition, you warrant that the content as uploaded or posted by you does not violate any person’s so-called “moral rights” or other similar or analogous rights under any applicable laws in any country or region of the world.
You understand that the uploading to and/or posting of any Community Content in any Community Feature shall not be subject to any obligation of confidence on the part of 1-800-N0TH1NG, and 1-800-N0TH1NG shall not be liable for any use or disclosure of any Community Content. By posting or uploading any Community Content to the Service, any Forum or submitting any other content to 1-800-N0TH1NG, you automatically grant (or warrant that the owner of such rights has granted) 1-800-N0TH1NG a perpetual, worldwide, royalty-free, irrevocable non-exclusive right and license to reproduce, modify, adapt, publish, publicly perform, translate, sublicense, create derivative works from, exploit, distribute and otherwise use such materials or incorporate such materials in or in connection with the Services or by or in any and all media, now known or hereafter devised, throughout the universe, in perpetuity for any purpose whatsoever, commercial or otherwise, without compensation or credit to the provider, author or owner of the Community Content. In addition, you represent and warrant that any and all Community Content you upload, post, transmit, send, share, store distribute or otherwise make available on the Service complies with each of the foregoing Community Guidelines.
From time to time, 1-800-N0TH1NG may offer Users the opportunity to create or acquire digital or virtual assets (collectively, “Virtual Assets“). Such opportunities are considered Community Features, and the Community Guidelines shall apply to them, but such Virtual Assets also involve additional considerations. In particular: (1) each User acknowledges and agrees that they are granted a limited, non-exclusive license to use the Virtual Assets in connection with, and solely as a part of, their use of the Services and then only for the duration permitted by 1-800-N0TH1NG, and Users shall have no ownership or property right, title, or interest in or expectation of the Virtual Assets, and any use of the Virtual Assets other than as permitted by these TOS will constitute a violation of these TOS and may constitute copyright infringement; (2) any modifications, combinations, alterations or other changes that a User makes to any Virtual Assets (“Alterations“) shall be deemed a work-made-for hire for 1-800-N0TH1NG and 1-800-N0TH1NG shall be considered the author and sole copyright owner of all rights and of all proceeds derived from the Alterations, with the right to make changes and use, in whole or in part, as 1-800-N0TH1NG may determine, together with all neighboring, rental, lending, fixation, reproduction, distribution and any and all other ownership and exploitation rights recognized in any territory, by all means, media, devices, processes and technology, and all rights generally known as the “moral rights of authors”, and to the extent such Alterations do not constitute a work-made-for-hire, each applicable User hereby grants, transfers, sells and assigns all right, title and interest therein to 1-800-N0TH1NG throughout the universe in perpetuity; and (3) Virtual Assets have no cash value and may not be redeemed for cash and may not be sold, auctioned, bartered, brokered, purchased outside of the Services or used to engage in any gambling activity. Any Virtual Assets obtained in this manner will be considered to have been fraudulently obtained and deemed void. For all other purposes of these TOS, Alterations shall be considered Community Content.
You agree to indemnify 1-800-N0TH1NG for any and all third party claims, damages, losses, and causes of action arising as a result of your posting or uploading any Community Content to any Community Feature or submitting any Community Content to 1-800-N0TH1NG, or your failure to comply with the Community Guidelines. 1-800-N0TH1NG does not and cannot review every message posted by users on the Services, and is not responsible for the content of these messages or the views or opinions expressed by the Users of the Services. 1-800-N0TH1NG reserves the right to, but is not obligated to, delete, move or edit Community Content, in whole or in part, submitted by you to the Services and/or 1-800-N0TH1NG for any reason. In no event does 1-800-N0TH1NG assume any obligation to monitor the Community Features or remove any specific material.
Section 3.4 – Promotional Activities
By registering for an Account, you agree that the Services may display your username throughout the Services, including, but not limited to areas such as leader boards, individual tournament records, message boards, chat rooms, etc. By accepting any prize from the Services, Users (except Users resident in the EU and the UK) agree to allow 1-800-N0TH1NG to print, publish, broadcast and use, and to authorize its affiliates and distributors to print, publish, broadcast and use, on a worldwide basis, in any and all media now known or hereafter devised, your name, picture, voice, likeness, statements, biographical information, a description of the prize(s) you won and any other personal characteristics for any purpose, including without limitation, promotional or related purposes without additional compensation, and you release 1-800-N0TH1NG from any liability with respect thereto. 1-800-N0TH1NG will only carry out any of the above activities in relation to Users resident in the EU and the UK in circumstances where such Users have consented to 1-800-N0TH1NG carrying out those activities. Please note that sweepstakes, contests or promotions offered via the Services may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to comply with and abide by such rules and the decisions of the sponsor(s), which shall be final and binding in all respects.
Section 3.6 – Anti-Spam Policy
The Services are vigorously against the practice commonly referred to as “Spamming.” Any User who is reported to be generating Spam, and whose “Spamming” is validated by the Services, will have their respective Accounts either immediately TERMINATED or SUSPENDED, at the sole discretion of 1-800-N0TH1NG. Additionally, any prizes (if any) may be voided at the sole discretion of 1-800-N0TH1NG. 1-800-N0TH1NG defines “Spam” as it is commonly understood, and includes the following:
· Electronic mail messages and commercial electronic messages addressed to a recipient with whom the initiator does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient;
· Messages posted to message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups, or posted in excessive volume; or
· Solicitations posted to chat rooms or sent to groups or individuals via Internet Relay Chat or “Instant Messaging” system (such as ICQ).
1-800-N0TH1NG may undertake, at its sole discretion and with or without prior notice, the following enforcement actions described in detail below:
· Account Suspension: Upon the receipt of a credible and validated complaint, 1-800-N0TH1NG may elect to immediately suspend the membership of the User implicated in the abuse. Suspension serves as a “final” warning and will prevent the abuser from continuing his/her abusive “Spamming” behavior. 1-800-N0TH1NG will evaluate each validated abuse incident on a case-by-case basis and impose termination or suspension at its sole discretion, and may void any associated prizes. 1-800-N0TH1NG reserves the right to lift the suspension of a User at any time, at its sole discretion.
· Account Termination: Upon the receipt of a credible and validated complaint, 1-800-N0TH1NG may immediately terminate the membership of the individual User implicated in the abuse and may void any associated winnings.
However, 1-800-N0TH1NG makes no representation or warranty about any third party’s compliance or non-compliance with Canada’s Anti-Spam Law.
SECTION 4 – LIMITATION OF LIABILITY
THE SERVICES, THE SERVICES MATERIALS, AND THE SOFTWARE, IF APPLICABLE, ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, 1-800-N0TH1NG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. 1-800-N0TH1NG DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SERVICES, THE SERVICES MATERIALS, THE COMMUNITY FEATURES OR THE SOFTWARE, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, THE SERVER THAT MAKES IT AVAILABLE, OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES, SERVICES MATERIALS, SOFTWARE OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON. 1-800-N0TH1NG DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE SERVICES MATERIALS, THE COMMUNITY FEATURES OR THE SOFTWARE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT 1-800-N0TH1NG) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
THE MATERIAL PROVIDED ON THE SERVICES IS FOR ENTERTAINMENT AND PROMOTIONAL PURPOSES ONLY. INFORMATION AND OPINIONS EXPRESSED IN THE COMMUNITY FEATURES ARE NOT NECESSARILY THOSE OF 1-800-N0TH1NG. THE COMPANY ENTITIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE (INCLUDING, BUT NOT LIMITED TO, ACTUAL, CONSEQUENTIAL OR PUNITIVE), LIABILITY, CLAIM OR OTHER INJURY OR CAUSE RELATED TO OR RESULTING FROM ANY INFORMATION POSTED ON THE SERVICES.
UNDER NO CIRCUMSTANCES, SHALL THE COMPANY ENTITIES BE LIABLE FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE COMMUNITY FEATURES, THE SERVICES MATERIALS, OR THE SOFTWARE, OR ANY ERRORS OR OMISSIONS IN ITS TECHNICAL OPERATION OR THE MATERIAL, EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHILE 1-800-N0TH1NG TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEBSITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, THE COMPANY ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES.
BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO 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.”
SECTION 5 – INDEMNIFICATION.
BY USING THE SERVICES YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE 1-800-N0TH1NG ENTITIES FREE FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR RELATING TO: YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION OF THESE TERMS OR ANY LAW; YOUR USE OF THE SERVICES AND/OR THE MATERIAL IN VIOLATION OF THESE TERMS; INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR DEFAMES ANY PERSON; ANY MISREPRESENTATION MADE BY YOU; AND/OR 1-800-N0TH1NG’S USE OF YOUR INFORMATION. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN 1-800-N0TH1NG’S DEFENSE OF ANY CLAIM. 1-800-N0TH1NG RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF 1-800-N0TH1NG.
SECTION 6 – MEMBER DISPUTES
You are solely responsible for your interactions with other Users and/or Community Feature Users. 1-800-N0TH1NG reserves the right, but has no obligation, to monitor disputes between you and other Users.
SECTION 7 – ABILITY TO ACCEPT TOS
You affirm that you are 13 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these TOS, and to abide by and comply with these TOS.
SECTION 8 – NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Services is 1-800-N0TH1NG, located at 2150 Colorado Avenue, Santa Monica, CA 90404. To file a complaint regarding the Services or to receive further information regarding use of the Services send a letter to the attention of the Legal Affairs Department at the above address. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
SECTION 9 – ADDITIONAL TERMS
If any provision of these TOS is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these TOS, which will remain in full force and effect. No waiver of any of these TOS will be of any force or effect unless made in writing and signed by a duly authorized officer of 1-800-N0TH1NG. The section titles in these TOS are for your convenience only and do not have any legal or contractual effect.
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