License Grant and Restrictions
This TOU provides to You a personal, revocable, limited, non-exclusive, non-sublicensable, and non-transferable license to use and access the Solution during the Term specified herein solely for Your personal business use, conditioned on Your continued compliance with all provisions of this TOU (including without limitation any external terms and documentation linked or referenced herein).
When using the Solution in accordance with the foregoing license, You shall not directly or indirectly (a) use the Solution to create any service, software or documentation that performs substantially the same functionality as the Solution or otherwise competes with or causes harm to Company’s products, services, or other business operations, (b) disassemble, decompile, reverse-engineer, or use any other means to attempt to discover any source code, algorithms, trade secrets, or applications underlying the Solution or any of its webpages, content, or features, (c) encumber, sublicense, transfer, distribute, rent, lease, time-share, or use the Solution in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of, or otherwise modify the Solution, (e) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in the Solution, (f) use or access the Solution for any unlawful, fraudulent, deceptive, tortious, malicious, or otherwise harmful or injurious purpose, (g) remove, obscure, deface, or alter any proprietary rights notices on any element of the Solution or accompanying documentation, or (h) use the Solution in any manner which could damage, disable, overburden, or impair the Solution or interfere with any third party’s authorized use of the Solution.
You represent that You are at least eighteen (18) years of age or the legal age of majority in Your jurisdiction (whichever is greater) and will, at all times, provide true, accurate, current, and complete information (which You have all necessary rights, permission(s), prior express consent, or authority to provide) when submitting information through the Solution. In addition, You are responsible for compliance with all applicable laws, rules, and regulations, including but not limited to all laws and regulations governing consumer protection, unfair competition, commercial electronic mail (email) and messages, advertising, privacy, and information security with respect to Your use of the Solution. If You access the Solution on behalf of any organization, Your organization shall be bound to this TOU and be liable for any breach by You. You represent that You have all rights, power, and authority to agree to this TOU on behalf of Your organization.
The Solution is not intended for use or access by any individual under the age of thirteen (13) years, and Company does not knowingly, willingly, or intentionally collect personal information from such individuals in any medium for any purpose.
You may be required to register an account to use the Solution or certain features of the Solution. Each registration is for a single user only, unless otherwise expressly agreed by Company. Registration for access to and use of the Solution may also require access credentials, such as a username and a password, or adherence to other access requirements as designated by Company in its sole discretion from time to time. You hereby agree to treat Your access credentials as confidential and not to disclose such information to any third party without the prior express written consent of Company, which may be granted or withheld in its sole discretion. You shall immediately notify Company if You suspect or become aware of any loss, theft, or unauthorized use of Your login credentials. Company will not be liable for any loss or damage arising from Your failure (whether intentional or unintentional) to comply with these obligations. By submitting the requested information to the registration form or similar process on the Solution, You represent and warrant that the information You submit for registration is complete, true, accurate, and current in all respects. You must maintain and promptly update Your submitted account information to ensure that such information is complete, true, accurate, and current. Company reserves the right to suspend, terminate, or otherwise discontinue Your account and/or pending registration if Company has reasonable grounds to suspect that any information You have submitted is untrue, inaccurate, not current, or incomplete, or that Your registration, account, or use of the Solution is in violation of applicable law or this TOU.
If You are a minor above the age of thirteen (13) years but below the age of eighteen (18) years (or the legal age of majority in Your jurisdiction, whichever is greater), You must first obtain the permission of your parent or guardian before registering any account with the Solution.Your parent or guardian must read and agree to this TOU on Your behalf prior to any such registration. In such event, Your parent or guardian consents to Your registration of the account and use of the Solution, and shall be deemed a party to this TOU in connection with Your continued access to the Solution. By registering an account and continuing to access the Solution, You represent that You have all permissions legally required for You to enter into this TOU and for the TOU to be and remain fully enforceable on You, including without limitation (as applicable) the consent of Your parent or guardian. Your parent or guardian represents that they are Your legal parent or guardian with all legal right and authority to consent on Your behalf to this TOU as a valid, binding, and enforceable contract.
Company may send emails or other electronic messages to You concerning Your use of the Solution, including without limitation by providing alerts or notifications within the Solution. You consent to receive such electronic communications and You agree that all such electronic communications constitute valid legal notices satisfying any requirement that such notices be in writing.
Certain features of the Solution may permit You to upload, post, display, transmit, or otherwise provide certain requested information, content, links, files, or other materials to the Solution (each a “Submission” and collectively “Submissions”). You hereby grant to Company a royalty-free, fully transferable, fully sublicensable license to use, display, copy, perform, reproduce, modify, record, distribute, and create derivative works of Submissions in connection with: (i) Company’s operation of the Solution and its features and functionalities; (ii) Company’s development, promotion, and implementation of its products, services, programs, and events; and (iii) Company’s research, development, and other business operations.
In addition, You agree that You will not upload, post, display, or transmit any Submission(s) that:
(a) are illegal, defamatory, deceptive, fraudulent, discriminatory, tortious, obscene, pornographic, or otherwise objectionable;
(b) infringe, misappropriate, or otherwise violate the personal or proprietary rights of others;
(c) contain any virus, malware, worm, Trojan horse, disabling device, or any other harmful or malicious script, code, or tool;
(d) impersonates any person or entity or falsely states or otherwise misrepresents Your affiliation with a person or entity;
(e) unsolicited communications, promotions, or advertisements, or spam;
(f) harms, harasses, threatens, or violate the rights of any third party, or promotes, provokes, or incites violence;
(g) constitutes false advertising, false endorsement, or is otherwise false, misleading, or likely to cause consumer confusion; or
(h) manipulates data or identifiers in order to misrepresent or disguise the origin of the Submission.
Company may screen, review, edit, moderate, or monitor Your Submissions from time to time at its discretion, but has no obligation to do so. In any event, Company is not responsible to You under this TOU for Your or any other user’s Submissions, and shall have no liability or responsibility for the quality, content, accuracy, legality, or effectiveness of any Submissions. You acknowledge and agree that Company shall have no obligation of confidentiality whatsoever with respect to Your Submissions.
By uploading, posting, displaying, transmitting, or otherwise providing a Submission to the Solution, You represent and warrant that: (i) You possess all legal rights required to upload, post, display, and/or transmit each Submission and permit Company to use such Submission as set forth herein (including without limitation any necessary third-party license rights or required consents under applicable law); (ii) each Submission is in full compliance with all applicable laws and regulations; and (iii) Your Submissions do not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party.
If You are accessing the Solution as a current or prospective content creator, certain features of the Solution may permit You to upload, post, display, transmit, or otherwise provide files, samples, and other items of Your creative content (collectively, “Creative Content”). You grant to Company a royalty-free, fully transferable, fully sublicensable license to use, display, copy, reproduce, and distribute Your Creative Content, as well as to modify Your Creative Content for formatting and presentation on the Solution, in connection with the marketing, promotion, and distribution of Your Creative Content to Company’s current or prospective customers and/or end users, and presentation in connection with the marketing, promotion, and distribution of the Solution. You acknowledge and agree that the restrictions set forth in items (a) through (h) above and the representations and warranties set forth in items (i) through (iii) above with respect to Submissions shall also apply to all Creative Content that You submit to the Solution.
On public-facing webpages, content portals, and other portions of the Solution which market and promote Your Creative Content, Company may provide a text credit which attributes authorship of Your Creative Content to You, using the name or other identification associated with Your account and/or submitted by You at the time You first upload the Creative Content. The format, size, font, and style of such credit shall be determined in Company’s sole discretion.
In addition to and without limiting any other representation, warranty, or covenant under this TOU, You agree that You shall not submit to the Solution any Creative Content which: (A) would require the separate consent of any third party (including without limitation for any license, publicity, or privacy rights) in order for Company to receive and exercise the full scope of the license granted by You above; (B) which is subject to a lien, security, or other encumbrance; or (C) which is not Your original creative work of authorship, and/or which You do not otherwise have full legal rights to provide as set forth hereunder.
Company reserves the right to remove, delete, and take down any Creative Content that You submit to the Solution (or any portion thereof), with or without notice to You, at any time for any reason in its sole discretion, including without limitation due to Your actual or suspected violation of this TOU. You acknowledge and agree that Company has no responsibility to create data backups or archives of Your Creative Content, and that Company shall not in any event be liable for the deletion or destruction of any electronic files or information embodying or relating to Your Creative Content.
There may come a time when You enter a separate Contributor Agreement or a separate Subscriber Agreement with Company, at which time the terms of that agreement will supersede these TOU to the extent there is any contradiction.
Publicity and Likeness Rights
If Your Creative Content incorporates Your likeness, appearance, image, performance, and/or voice (collectively, “Likeness Rights”), You grant to X4Y the non-exclusive, royalty-free, freely transferable, freely sublicensable right to use, display, and reproduce Your Likeness Rights (each to the extent so incorporated): (i) as reasonably required for X4Y to exercise its rights in Your Creative Content as set forth above; (ii) as required to provide applicable features of the Solution to You and to other end users; and (iii) in connection with the marketing, promotion, and distribution of the Solution. You acknowledge that you will not be entitled to any fee or other monetary compensation for X4Y’s permitted use of Your Likeness Rights in the Creative Content (or any portion, selection, adaptation, or derivative work thereof).
Links to Third-Party Solutions and Services
In addition, certain elements of the Solution may permit You to utilize certain third-party content, applications, or other tools and materials (collectively, “Third-Party Elements”) in connection with Your Creative Content or other Submissions. You agree to follow all third-party license terms and other terms which may apply to such Third-Party Elements, and to follow all instructions and policies presented to You in the Solution with respect to Your use of Third-Party Elements. You agree not to utilize Third-Party Elements in any way which exceeds the limited scope of permissions described in the Solution with respect to such Third-Party Elements. You acknowledge that any breach or violation of the terms of any license to Third-Party Elements shall constitute Your material breach of this TOU.
COMPANY EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY MATERIALS, PROGRAMS, APPLICATIONS, TOOLS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED THROUGH THE SOLUTION, AND YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF ANY DEALINGS BETWEEN YOU AND A THIRD PARTY, REGARDLESS OF WHETHER SUCH DEALINGS WERE FACILITATED OR PERFORMED IN CONNECTION WITH THE SOLUTION.
Third-Party Terms and Conditions
All content included as part of the Solution, such as text, graphics, logos, and images, as well as the compilation thereof, and any software or other proprietary materials used on or integrated with the Solution, are the property of Company or its applicable third-party licensors, and are protected by copyright and other domestic and international laws governing intellectual property and proprietary rights. Company reserves all rights in the Solution not expressly granted herein.
You agree that You do not acquire any ownership rights in any part of the Solution under this TOU or through Your use of the Solution. Company does not grant You any rights or licenses, express or implied, to any intellectual property hereunder except as specifically authorized by this TOU.
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns from and against any losses, costs, liabilities, damages, and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) Your violation of this TOU, (ii) Your infringement, misappropriation, or violation of any personal or proprietary rights of a third party, (iii) Your violation of applicable laws, rules, or regulations, and/or (iv) Your Submissions, including without limitation the quality, content, accuracy, legality, or effectiveness thereof, or any communications, transactions, or results arising therefrom. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Company in asserting any available defenses.
Disclaimers and Excluded Liability
COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WHICH HAVE NOT BEEN EXPRESSLY AGREED TO BY COMPANY IN A SEPARATE MUTUALLY EXECUTED WRITTEN AGREEMENT BETWEEN YOU AND COMPANY. COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL MEET YOUR EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS, OR THAT THE SOLUTION WILL BE FREE OF VIRUSES, MALWARE, OR ERRORS. COMPANY FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA OR CONTENT UPLOADED TO, STORED BY, OR TRANSMITTED BY THE SOLUTION OR SERVICES, INCLUDING WITHOUT LIMITATION ANY SUBMISSIONS.
IN NO EVENT SHALL COMPANY BE LIABLE HEREUNDER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STATUTORY LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OR INACCURACY OF DATA, LOSS, OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, REVENUES, PROFITS AND/OR GOODWILL, EVEN IF SUCH DAMAGES WERE REASONABLY FORSEEABLE OR IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DAMAGES WHICH, IN THE AGGREGATE, EXCEED (I) THE TOTAL AMOUNTS PAID OR PAYABLE BY YOU TO COMPANY FOR USE OF THE SOLUTION OVER THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM OR CAUSE OF ACTION FIRST ACCRUED OR (II) IF THERE IS NO SUCH AMOUNT PAID OR PAYABLE, TEN U.S. DOLLARS (USD$10.00). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE INSUFFICIENCY OR FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN.
CERTAIN JURISDICTIONS AND LAWS MAY NOT PERMIT SOME OR ALL OF THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION. IN THE EVENT THAT SUCH A JURISDICTION OR LAW APPLIES TO THE SUBJECT MATTER OF THIS TOU, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Term, Termination, and Suspension
This TOU takes effect (or re-takes effect) at the moment You first access or use the Solution. Company reserves the right at any time and on any grounds, including without limitation any reasonable belief of fraudulent or unlawful activity, to deny or suspend Your access to the Solution or to any portion thereof in order to protect its name and goodwill, its business, the security and stability of the Solution, and/or the rights of others. This TOU terminates automatically if You fail to comply with any provision hereof, subject to the survival rights of certain provisions identified below. You may also terminate this TOU at any time by ceasing to use the Solution, but each re-access or renewed use of the Solution will reapply the TOU to You. Upon termination or expiration of the TOU for any reason, all licenses granted by Company hereunder shall immediately terminate, and You must immediately cease all use of the Solution. The provisions of this TOU concerning Company’s proprietary rights, licenses to Submissions, disclaimers of warranty and liability, limitations of liability, waiver and severability, entire agreement, indemnification rights, injunctive relief, and governing law will survive the termination of this TOU for any reason.
Company reserves the right, in its sole discretion, to terminate or suspend Your access to the Solution or any feature or portion thereof at any time, without notice to You, if Company reasonably determines or suspects that You are in violation of this TOU.
In the event the parties hereto are not able to resolve any dispute between them arising out of or concerning this TOU or any provisions hereof, whether arising in contract, tort, or any other legal theory, then such dispute shall be resolved exclusively through final, binding, and confidential arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration shall be in Los Angeles, California. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the arbitrator. This arbitration provision shall survive the termination of this TOU for any reason. Notwithstanding the foregoing, Company may bring a claim for injunctive relief or other equitable relief against Your violation of this TOU in any court of competent jurisdiction.
Class Action Waiver
BY USING THIS SITE AND AGREEING TO THESE TERMS, YOU HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVE ALL RIGHT TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THIS TOU OR YOUR USE OF THE SOLUTION. YOU MAY NOT BRING ANY CLAIM, SUIT, OR OTHER PROCEEDING TO ENFORCE THIS TOU AS THE MEMBER OF ANY CLASS OR AS PART OF ANY SIMILAR COLLECTIVE OR CONSOLIDATED ACTION.
Governing Law and Venue
This TOU is governed by the laws of California, United States of America, without reference to its principles of conflict of laws. The Solution may not be used or accessed from or in any jurisdiction that does not give effect to all provisions of this TOU, including without limitation this paragraph. Subject to the Arbitration requirements set forth above, any claim, suit, or other proceeding arising under or in connection with this TOU shall be brought exclusively before the state and federal courts sitting in Los Angeles, California and You consent to the exclusive jurisdiction of such courts for the final resolution thereof.
The relationship between You and Company under this TOU is that of independent contractors, and nothing herein or in Your use of the Solution shall be construed as creating any joint venture, partnership, employment, or agency relationship.
Security and Compliance
Company reserves the right to view, monitor, and record Your activity on the Solution without notice or permission from You. Company’s provision of the Solution is subject to existing laws and legal process, and nothing contained herein shall restrict or reduce Company’s ability to comply with governmental, court, and law enforcement requests or requirements involving Your use of the Solution or information provided to or gathered by Company with respect to such use.
You represent and warrant that You are not: (a) located in a country that is subject to a U.S. government embargo; or (b) listed on any U.S. government list of prohibited or restricted parties. You hereby agree that (i) You will comply with all applicable sanctions and export control laws, and (ii) You are solely responsible for ensuring that the Solution is used, disclosed, and/or accessed only in accordance with all applicable sanctions and export control laws.
Severability and Waiver
If any part of this TOU is determined to be invalid or unenforceable pursuant to court order or other operation of applicable law, such provision shall be deemed severed from this TOU, and the remainder of this TOU shall continue in full force and effect to the maximum extent permitted under applicable law.
Failure to insist on strict performance of any of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by Company of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
You acknowledge that any breach, threatened or actual, of this TOU would cause irreparable injury to Company not readily quantifiable as money damages, such that Company would not have an adequate remedy at law. You therefore agree that Company shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any such breach of Your obligations, without the necessity of posting bond or other security.
Changes to Terms
Please note that Company reserves the right to change the terms and conditions of this TOU by posting a revised set of terms, or mailing and/or emailing notice thereof to You (or such other method as may be required by applicable law). In addition, Company may add, modify, or delete any aspect, component, or feature of the Solution, but Company is not under any obligation to provide any upgrade, enhancement, or modification. Your continued use of the Solution following any announced change will be deemed as conclusive acceptance of any change to the TOU. Accordingly, please review the TOU on a periodic basis.
If You have any questions or comments regarding this TOU, please contact Company at:
DMCA Notice/Procedure for Claims of Copyright Infringement:
Company responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act (DMCA).
Pursuant to Title 17, United States Code, § 512(c), if You believe in good faith that Your copyrighted work has been reproduced and is accessible on the Solution in a way that constitutes copyright infringement, please provide Company’s DMCA agent with a written communication containing the following information.
Claims of infringement that include the above required information must be submitted via postal mail or e-mail to Company’s registered DMCA agent as follows:
641 N. Larchmont Blvd. Suite 100
Los Angeles, CA 90004
Company reserves the right to remove any posted submission that infringes the copyright of any person under the laws of the United States upon receipt of a notice that complies with the requirements of 17 U.S.C. § 512(c)(3). Please be aware that U.S. Copyright law provides significant penalties for submitting such a notice falsely. Pursuant to 17 U.S.C. § 512(g), Company will notify the poster that their submission has been removed and may provide the rights owner’s name, Your email, and the details of Your report to the user who posted the content You are reporting and Company will comply with any counternotifications as required by the DMCA.
Company has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of repeat infringers.