27 min read
(Effective January 14, 2020)
1. INTRODUCTION AND ACCEPTANCE
2. INTELLECTUAL PROPERTY
3. ACCOUNT REGISTRATION & PROMOTIONAL MESSAGES
(A) IN ORDER TO ACCESS OR USE SOME FEATURES OF OUR SERVICES, YOU MAY HAVE TO BECOME A REGISTERED USER.
(B) If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create or we will provide a user name and password to create an “Account.” You are solely responsible for safeguarding and maintaining the confidentiality of your Account. You may not share your Account access details or authorize others to use your Account. You are responsible for all Services ordered or other activity under your Account. You agree to contact us immediately, via email@example.com, if you become aware of any breach of security or unauthorized use of your Account. We have the right to disable any Account, at any time in our sole discretion for any or no reason.
4. ACCESS AND USE
(A) In all instances, our Services are not being sold to you; rather, you are being granted a limited and revocable license to use our Services.
(B) Our Services generally require that you have internet or data network access. You are responsible for obtaining all such access, along with the computers, mobile devices and other equipment necessary and any software necessary to use the Services. For instance, for our Applications, you will need a mobile device that is compatible with our Application and wireless data access – data and messaging rates from your mobile carrier may apply to such uses. We do not guarantee that the Services, or any portion, will or will continue to function on or interoperate with any particular equipment, device, or software.
(D) In certain instances, we may provide you access to our Services for business purposes, such as entering or accessing information in connection with a license your employer has obtained from CRäKN to use our Services (“Business Use”). In these instances, you agree to: (i) use our Services solely for the Business Use; (ii) to keep strictly confidential all User Content (including any user’s Account information), Service Content, the Applications, and other CRäKN user/customer information accessed through the use of the Services, as well as any technical, financial, strategic and other proprietary and confidential information relating to our business or operations that you may access or that we may directly or indirectly provide (“Confidential Information”); (iii) not share any Confidential Information with anyone except to those employed by your employer, but only where the sharing of the Confidential Information is necessary to further the Business Purpose and only after those persons have been informed of these obligations of confidentiality and have agreed to be bound or are already bound by obligations of confidentiality at least as restrictive as those contained herein ; and (iv) not share your Account access information with any other user, including other employees of your employer.
(G) You understand and agree that your use of the Services and/or Service Content while operating a motor vehicle (or during any other activity that requires your attention) may be distracting, dangerous, or prohibited by law. You are solely responsible for your exercising good judgment, acting in a safe and responsible manner, and obeying all laws and regulations at all times. You understand that failing to pay full attention in the operation of a vehicle or in other activities may cause an accident, damage, injury, death, or other serious consequences. You assume sole responsibility for your use of the Services and Service Content.
5. USER CONTENT
(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, a person’s right of publicity, privacy, or other similar right or any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity; (ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, or otherwise violates any applicable law; (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; (iv) is an advertisement for goods or services or a solicitation of funds; (v) contains a formula, instruction, or advice that could cause harm or injury; or (vi) is a chain letter of any kind.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.
(F) Without limiting the generality of the foregoing, we reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising, marketing, promotional, and other commercial purposes. Without limiting the generality of the foregoing, you acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners, marketing partners, accounts, and third-party service providers (including their downstream users).
(G) We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any or no reason to edit, refuse to post, remove, or disable access to any User Content.
6. SERVICE CONTENT & THIRD PARTY LINKS
(A) You may not rely on any information and opinions expressed through any of our Services for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any Service Content. Use of the Service Content is at your own risk and under no circumstances will we be liable for any loss or damage caused by your reliance on any Service Content.
(B) In many instances, Service Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.
(C) Our Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
8. DISCLAIMER OF WARRANTIES
(A) YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES AND THE SERVICE CONTENT IS AT YOUR SOLE RISK. OUR SERVICES AND SERVICE CONTENT (INCLUDING SOFTWARE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE CRÄKN PARTIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT OUR SERVICES OR SERVICE CONTENT WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR SERVICES OR SERVICE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED OR ACCESSED THROUGH OUR SERVICES OR REFERENCED IN OUR SERVICE CONTENT; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES OR SERVICE CONTENT; (6) WARRANTIES THAT YOUR USE OF OUR SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN OUR SERVICES OR SERVICE CONTENT (INCLUDING SOFTWARE) WILL BE CORRECTED.
9. LIMITATION ON LIABILITY
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
(A) We reserve the right in our sole discretion and at any time to terminate or suspend your Account and/or block your use of our Services for any or no reason You agree that CRäKN is not liable to you or any third party for any termination or suspension of your Account or for blocking your use of our Services.
11. COPYRIGHT POLICY
(A) We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Account of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
1776 Mentor Ave.
Cincinnati, Ohio 45212
(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted 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. (iii) 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. (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted. (v) A statement that you have 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. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
12. CHOICE OF LAW; JURISDICTION AND VENUE
13. DISPUTE RESOLUTION; MANDATORY ARBITRATION; CLASS ACTION WAIVER; WAIVER OF JURY TRIAL
(B) For any Dispute, the place of arbitration shall be in Hamilton County, Ohio.
(C) The cost of the arbitration proceeding, including, without limitation, each party’s attorneys’ fees and costs, shall be borne by the unsuccessful party or, at the discretion of the arbitrators, may be prorated between the parties in such proportion as the arbitrators determine to be equitable and shall be awarded as part of the award.
(D) RESTRICTIONS ON ARBITRATION: ALL DISPUTES, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE, SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY DISPUTES YOU MAY HAVE AGAINST CRäKN, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS YOU HEREBY AGREE TO BIFURCATE AND ARBITRATE AGAINST THEM INDIVIDUALLY IN HAMILTON COUNTY, OHIO. YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. YOU AND CRäKN AGREE THAT THE ARBITRATORS HAVE NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND ARE ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN YOU AND I CRäKN, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS. FURTHER, YOU WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
(E) THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING WAIVER OF CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION, IF CHALLENGED, ARE TO BE DETERMINED SOLELY AND EXCLUSIVELY BY THE STATE COURTS LOCATED IN HAMILTON COUNTY, OHIO OR THE FEDERAL DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF OHIO IN CINCINNATI, OHIO.
14. AMENDMENT; ADDITIONAL TERMS
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