Last Modified February 22, 2016.
For certain aspects of the Website, you may be asked to register an account. In the event you agree to register an account, you will select and/or receive a username and password upon providing registration information and successfully completing the registration process. This account is personal to you, and you will not share it or allow any other person to utilize your account. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You agree to immediately notify the Plan in the event (a) your registration information changes, or (b) you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You also agree that you will provide truthful and accurate information during the registration process. The Plan may refuse to grant a particular username to you for any reason, including, without limitation, in the event we or the Plan determines that such username already exists, impersonates someone else, is protected by trademark or other proprietary right law or is vulgar or otherwise offensive.
You acknowledge that the Website may contain or provide access to information, software, photos, video, text, graphics, music, sounds or other material provided by the Plan or third parties (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets or other intellectual property laws, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed.
We welcome your comments, feedback, information, or materials regarding the Website, Content, or the Plan’s products or services (collectively, “Feedback”). If you submit Feedback, please note that your Feedback shall become our property. By submitting your Feedback, you agree to assign, and hereby irrevocably assign to the Plan, for our benefit, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We shall be free to use your Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Feedback.
If you provide any Feedback via the Website, you hereby make the following additional representations and warranties to us and the Plan: (1) you are owner of such Feedback or otherwise have the right to grant to us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to post the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
The Content provided via the Website, or any benefit or service available via the Website, is provided for informational purposes only, with the understanding that neither the Plan nor any of its service providers is rendering legal, accounting, or other professional advice on specific matters. Accordingly, neither the Plan nor its service providers assume any liability whatsoever in connection with the use of such content. The Plan recommends that you consult your legal counsel or other professional advisor with respect to your individual situation.
The Plan uses reasonable efforts to maintain the Website, but neither the Plan nor we are responsible for any defects or failures associated with the Website, any part thereof, any Content posted using the Website, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Website may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which we may undertake from time to time, or (c) causes beyond our control or the control of the Plan or which are not foreseeable by us and the Plan and its service providers.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE WEBSITE, ANY CONTENT, AND ANY BENEFITS OR SERVICES PROVIDED VIA THE WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, WE AND THE PLAN EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITATION, NEITHER WE NOR THE PLAN MAKES ANY WARRANTY THAT THE WEBSITE, ANY CONTENT, OR ANY BENEFITS PROVIDED VIA THE WEBSITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY CONTENT, BENEFITS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE WEBSITE WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER WE NOR THE PLAN SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE PLAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE WEBSITE, ANY CONTENT, OR ANY BENEFITS OR SERVICES PURCHASED VIA THE WEBSITE; (B) DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE OR OTHERWISE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) ANY OTHER MATTER RELATING TO THE WEBSITE, ANY CONTENT, OR THE BENEFITS OR SERVICES OFFERED BY THE PLAN. IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE WEBSITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY AND THE PLAN’S 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 ANY FEES PAID BY YOU TO THE PLAN FOR PROVIDING THE BENEFITS AND SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless us and the Plan, and each of our officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (a) your access to or use of the Website or any part thereof, (b) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement, (c) infringement or misappropriation of any intellectual property or other rights of ours or the Plan’s or third parties by you, (d) any negligence or willful misconduct by you, (e) any other claim related to your performance under this Agreement, or (f) your use of any Content, services, or products provided by the Plan.
Term and Termination
Further, you agree that neither we nor the Plan shall be liable to you or any third-party for any termination or suspension of your access to the Website or any part thereof, removal of Content or sale of any products. You may terminate this Agreement at any time by immediately discontinuing all access to the Website and by providing notice to the Plan of such discontinuance. Termination or cancellation of this Agreement shall not affect any right or relief to which we or the Plan may be entitled at law or in equity. Upon termination of this Agreement, you shall terminate all use of the Website and any Content provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with this Agreement.
Governing Law and Other Miscellaneous Terms
The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
You acknowledge and agree that any expenses that you incur in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may be terminated as provided herein. You shall not make a claim against the Plan or any of its service providers, and neither we nor the Plan shall be liable with respect to the recoupment of any expenditures or investment made by you in anticipation of the continuation of this Agreement beyond the term hereof.
The parties agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to the, which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that either we or the Plan shall have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies that we or the Plan may have for your breach of this Agreement.
If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting and construing this Agreement.
If the performance of any part of this Agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, telecommunications failure or any other cause beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.
This Agreement, including any other agreements or additional terms referenced herein, constitutes the complete and exclusive statement of the Agreement between the parties with respect to the Website, Content, and products and services offered via the Website, and, unless otherwise expressly provided herein, it supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Website, Content, and benefits and services accessed via the Website. If any provision of this Agreement is found unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision.
As so reformed or modified, the court shall fully enforce this Agreement. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
Neither we nor the Plan makes any representation that the Website, Content or other material or information on the Website is appropriate to or available in locations outside of the United States. You may not use the Website or export Content in violation of United States export laws, regulations or restrictions. If you access the Website from outside of the United States, you are responsible for compliance with all applicable laws.
Copyright and Copyright Notices
We and the Plan respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information:
an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Website sufficient to allow us to locate the allegedly infringing material;
your address, telephone number, and email address;
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; 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.