Date Revised and Posted: 11/20/2011 (“Effective Date”) by , CheckYourReference.com with an address at 1289 Northfield Drive, Suite 1, Box 132, Clarksville, Tennessee, 37040 USA
2. DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND ITS CONTENTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND WE DO NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE OR ITS CONTENTS, INCLUDING, WITHOUT LIMITATION, ANY REGARDING OR ARISING FROM: (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (II) COURSE OF DEALING, COURSE OF USAGE, OR COURSE OF PERFORMANCE; OR (III) TIMELINESS, ACCURACY, RELIABILITY OR CONTENT OF THE SITE AND ANY INFORMATION PROVIDED THROUGH THE SITE UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF TRANSACTIONS EXECUTED ON THE SITE OR THE RESULTS TO BE OBTAINED FROM THE USE OF THE INFORMATION ON THE SITE, AND INFORMATION ON THE SITE IS NOT INTENDED TO PROVIDE LEGAL, FINANCIAL, ACCOUNTING, TAX OR OTHER ADVICE, AND SHOULD NOT BE RELIED UPON AS PROFESSIONAL ADVICE.
3. LIMITATION OF LIABILITY.
3.1 Excluded Damages. WE ARE NOT LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES (COLLECTIVELY, THE “DAMAGES”), ARISING OUT OF YOUR USE OR INABILITY TO USE THE SITE. BY WAY OF EXAMPLE AND NOT OF LIMITATION, WE ARE NOT LIABLE FOR DAMAGES FOR: (I) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA, (II) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION, EQUIPMENT, OR PROPERTY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE FOR THE CONDUCT OF AND INFORMATION SUPPLIED BY OTHER SITE USERS OR THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT) AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
3.2 Enforceability. THIS PROVISION ENTITLED “LIMITATION OF LIABILITY” APPLIES REGARDLESS OF: (A) OUR NEGLIGENCE; (B) OUR GROSS NEGLIGENCE; (C) ANY FAILURE OF AN ESSENTIAL PURPOSE; AND (D) WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THIS PROVISION ENTITLED “LIMITATION OF LIABILITY” APPLIES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW, AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
3.3 Third Parties. WE ARE NOT RESPONSIBLE AND NOT LIABLE FOR ANY INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY OTHER WEB SITES THAT LINK TO OR FROM THE SITE. WE NEITHER ENDORSE NOR ARE RESPONSIBLE FOR THE ACCURACY OF ANY THIRD PARTY MATERIAL(S), AND YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF, OR RELIANCE ON, SUCH MATERIAL(S), NOR FOR ANY FAILURE TO ENFORCE ANY OF OUR RIGHTS UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AGAINST ANY SITE USER OR ANY THIRD PARTY.
4. YOUR USE OF THE SITE.
4.1 Your Right to Use the Site. We grant you a non-exclusive, personal, and revocable right to access the Site. You represent that you are at least 18 years of age.
4.2 Passwords. You are responsible for protecting the confidentiality of your password(s), and for the acts and omissions of any third party that accesses the Site through use of your password, as if such acts and omissions were your own.
4.3 Changes to the Site and Premium Features. We shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment needed for access or use.
6. EQUIPMENT. You must obtain, pay for and maintain all software, hardware and anything else needed to use the Site.
7. YOUR CONDUCT.
7.1 Lawful Purposes. You shall use the Site for lawful purposes only. You shall not post or transmit through the Site any material which violates or infringes in any way upon the rights of others, is unlawful, threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, contains injurious formulas, recipes, or instructions that encourage criminal conduct, give rise to civil liability or otherwise violate any law.
7.2 Intellectual Property. The Site contains copyrighted material, trademarks and other proprietary information, which may include, but is not limited to, text, software, photos, video, graphics, music and sound. We own a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original, granted or assigned to us. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works, publicly distribute, publicly display, reproduce, publicly perform, or in any way exploit in any format whatsoever (including, without limitation, print and electronic formats) any of the Site content, without our prior written authorization. You may download copyrighted material for your personal use only. Except as otherwise expressly permitted under the United States copyright laws, copying, redistribution, retransmission, publication or commercial exploitation of downloaded material is not permitted without our written permission and the applicable copyright owner. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
7.3 Works and Material You Submit to the Site. You shall not upload, post or otherwise make available on the Site any works or material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any works or material are not so protected rests entirely with you. You are liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a submission. For all works or material submitted by you to the Site, you automatically grant, or warrant that the owner of such material has expressly granted, us a royalty-free, perpetual, irrevocable, worldwide, fully-paid up license to use, reproduce, create derivative works, publicly distribute, publicly perform, publicly display, assume any sound recording rights or moral rights of attribution or integrity, transmit, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed (including, without limitation, print and electronic form, media and technology) for the full term of any copyright that may exist in such works or materials. Except as limited under applicable law, and subject to any functionality on the Site allowing you to restrict access, you also permit any other Site user to access, view, store or reproduce the works or materials consistent with the provision entitled “Your Right to Use the Site.”
11. TRADEMARKS. The following trademark(s) are owned by us, all rights reserved: [INSERT TEXT]. All other trademarks appearing on the Site are the property of their respective owners. You gain no rights of any nature whatsoever in our trademarks, service marks or trade names through your use of the Site.
12. NO ENDORSEMENT OF SITE CONTENT. We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice or statement made on or off the Site by anyone other than one of our authorized employee spokespersons while acting in their official capacities. It is the responsibility of you to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site or through a Site user. Advice of a professional may be necessary for you regarding the evaluation of any specific information, opinion, advice or other content.
13. WE MAKE NO WARRANTY. We provide the service “as-is,” “with all faults” and “as available.” We do not guarantee the accuracy or timeliness of information available from the service. We provide no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. We exclude any implied warranties including those of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement.
14. PAYMENT FOR SERVICES. When you create an order with us, you enter your payment method. You must be authorized to use the payment method you select. You authorize us to charge you for the service using your payment method and for any paid feature of the service for which you choose to sign-up or use while this contract is in force.
14.1 Prices and Price Increases. The price for the service excludes all taxes and phone charges, unless stated otherwise. These taxes and charges are your responsibility. If there is a specific time length and price for your service offer, then that price will remain in force for that time. After the offer period ends, your use of the service will be charged at the new price.
14.2 Canceling the Service. You may cancel the service at any time, with or without cause. Cancellation of the service by you will not alter your obligation to pay all charges associated with placing the order.
14.3 Refund Policies. Unless otherwise provided by law, all charges are non-refundable unless stated otherwise and the costs of any returns will be at your expense.
14.4 Late Payments. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1-1/2% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys” fees and other legal fees and costs. We may suspend or cancel your service if you fail to pay in full on time.
15 Payments to You. Your right to any payment due you under a service is conditioned upon you promptly providing us with all information we require to properly make the payment (for example, bank account information for receiving the payment). We will use reasonable efforts to tell you what information we require in advance of your use of the applicable service. Even if we do not tell you in advance, you must provide us the information we request before your right to receive the payment accrues. You are responsible for the accuracy of the information you provide and any taxes you may incur as a result of receiving a payment. You must also comply with any other conditions we place on your right to any payment. If you receive a payment that was not due to you, we may reverse or seek return of the payment and you agree to cooperate with us in our efforts.
16. COPYRIGHT INFRINGEMENT: TERMINATION, NOTICE AND TAKEDOWN POLICY. Our Copyright Agent for notice of claims of copyright infringement on or regarding the Site can be reached as follows: CheckYourReference.com, Registered Agent, 1289 Northfield Drive, Suite 1, Box 132, Clarksville, TN 37040.
17.1 Termination of Site Access. We respect the rights of copyright holders and in this regard, we have adopted and implemented this policy. Under this policy, we shall terminate, if commercially practicable and reasonable, Site access in appropriate circumstances for employees, Site users and account holders, who infringe the rights of copyright holders. If the infringer is an innocent infringer, then we shall not terminate access unless such person has repeatedly infringed copyrighted material. If we determine that the infringer negligently or intentionally engaged in the infringing activity, then we reserve the right to immediately terminate that infringer’s Site access.
17.2 Notification. If anyone believes that his or her work has been copied in a way that constitutes copyright infringement, and that work appears on the Site, or on another web site linked to the Site, then that person (the “Notifier”) should provide our Copyright Agent a notification (“Notification”) containing the following information under the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (the “Acts”), 17 U.S.C. §512(c)(3):
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 copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us 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.
17.3 Counter Notification. Upon receiving a Notification, we will take reasonable steps to notify you or the other individual (the “Material User”) under whose direction the material resides on the Site or any other web site, if applicable, that we have removed or disabled access to such material. If the Material User believes that our removal of or disabling of access to such material was a result of mistake or misidentification, then the Material User should provide our Copyright Agent a counter notification (a “Counter Notification”) containing the following information under the Acts, 17 U.S.C. §512(g)(3):
1. A physical or electronic signature of the Material User;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that the Material User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
4. The Material User’s name, address, and telephone number, and a statement that the Material User consents to the jurisdiction of Federal District Court for the judicial district in which such address is located, and that the Material User will accept service of process from the Notifier or his or her agent.
Upon receipt of a Counter Notification, we will provide the Notifier with a copy of the Counter Notification. We will also inform the Notifier that we will replace the removed material or cease disabling access to it. We will then restore the removed material or cease disabling access to it unless the Notifier has filed an action seeking a court order to restrain the Material User from engaging in infringing activity relating to the material on the Site. The aforementioned responsibilities are required of us in order to comply with the Acts. If the Notifier is you, you hereby agree to provide our Copyright Agent with immediate written notice of the filing of the above action.
Entire Agreement and Amendments. This Agreement is the entire agreement between us and supersedes all earlier and simultaneous agreements regarding the subject matter. Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of the State of Tennessee, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Montgomery County, Tennessee, regardless of the inconvenience of the forum, except that we may seek temporary injunctive relief in any venue of our choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. No Waivers, Cumulative Remedies. Our failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of our rights under this Agreement. All of our remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect our original intent, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.
Notices. All notices to us under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to this address: CheckYourReference.com, 1289 Northfield Drive, Suite 1, Box 132, Clarksville, Tennessee, 37040, USA. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
I agree to defend, indemnify and hold CheckYourReference.com, it’s founders, operators, owners, shareholders, directors, officers, employees, representatives, vendors, contractors, and affiliates harmless from any claim, suit, or demand for damages arising out of services performed for me or on my behalf. Neither termination nor cancellation of services or any authorization granted hereunder shall be deemed to relieve either party of any obligations that by their nature survive such termination or cancellation, including but not limited to all guaranties and promises of indemnity.