Effective Date: February 16, 2011
Americab ("Americab," "we," "our" or "us") owns or controls, and provides access to, the web site that links to these TOU (collectively, the "Web Site"). THESE TOU GOVERN YOUR USE OF THE WEB SITE. These TOU only apply to the Web Site, and not to any other web site or any offline activities by Americab (unless specifically stated). You agree to these TOU by accessing or using the Web Site, registering for services offered on the Web Site, or by accepting, uploading, submitting or downloading any information or content from or to the Web Site. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TOU, DO NOT USE THE WEB SITE.
TABLE OF CONTENTS
- CONDITIONS OF USE
- OWNERSHIP OF MATERIALS
- CONTENT YOU SUBMIT
- ACCEPTABLE USE
- COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY AND RELATED COMPLAINTS
- LIMITATION OF LIABILITY
- THIRD-PARTY SITES
- LINKING TERMS
- DATED MATERIALS
- REVISIONS TO TOU
1. Conditions of Use. The Web Site; their past, present and future versions; all web pages found within the Web Site; the materials and information on the Web Site, including, without limitation, organization, graphics, text, images, audio, videos, designs, compilations, advertising copy, and the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); and all other materials related to the Web Site, including without limitation, the "look and feel" of the Web Site (collectively, the "Materials") are provided by Americab or its subsidiaries, affiliates, or licensors. By using the Web Site, you represent that: (i) you have the capacity to be bound by these TOU or, if you are a minor, your parent or legal guardian has read and agreed to these TOU on your behalf; (ii) all information you provide to Americab is true, accurate, complete and current; (iii) you hold and will continue to hold all rights necessary to enter into and fully perform your obligations under these TOU and to grant the rights granted under these TOU; and (iv) if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity.
2. Ownership of Materials. Except as otherwise indicated, the Materials are either owned by Americab or its subsidiaries, affiliates, or licensors. The Materials are protected by copyright, trademark and other intellectual property laws and treaties. Subject to the terms and conditions set forth in these TOU, Americab grants you a revocable, non-exclusive, non-transferable, limited right to access, use, and display the Web Site and the Materials thereon. The Materials may not be copied, reproduced, modified, published, uploaded, downloaded, posted, transmitted, or distributed in any way, without Americab’s prior written permission. Any copy of the Materials or portion thereof must include any copyright notice and other intellectual property designations provided by Americab or its parent, subsidiaries, affiliates or licensors. You also may not (i) modify the Materials or the Web Site or use them for any commercial purpose, or any other public display, performance, sale, or rental; (ii) decompile, reverse engineer, or disassemble software Materials; (iii) remove any copyright notice or other proprietary notices from the Materials; or (iv) transfer the Materials to another person.
3. Content you Submit: By posting a message or sending an e-mail to Americab or contributing in any way to the Web Site, including, but not limited to, sending comments, suggestions, questions, or ideas concerning products and services (each, a "Submission"), you expressly grant Americab the right to use and exploit the Submission in any way, including, without limitation, to copy, republish or sell your Submission (including, without limitation, names, voices, likenesses and other personally identifying information contained in your Submission) in any form, media, software or technology of any kind now known or developed in the future for any purposes whatsoever including, without limitation, developing, manufacturing and marketing products and services using such information and for other marketing and promotional purposes, without any compensation to you. All Submissions shall not be considered confidential or proprietary information.
(a) Submit any virus, worm, “Trojan Horse,” “easter egg,” “time bomb,” spyware, or any other computer code, file, or program that may or is intended to damage, hijack or otherwise interfere with the operation of the Web Site, the Materials or any third party’s uninterrupted use and enjoyment of the Web Site or the Materials;
(b) Submit any advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," investment opportunities, or any other form of solicitation;
(c) Violate or attempt to violate the security of any portion of the Web Site, including but not limited to: (i) access Materials not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iv) attempt to interfere with or disrupt the Web Site or the servers or networks that support the Web Site, including, without limitation, via means of submitting a virus to the Web Site or overloading, “flooding,” “mailbombing” or “crashing” the Web Site; or (v) restrict or inhibit any other user from accessing or using the Web Site, including, without limitation, by means of hacking or defacing any portion of the Web Site;
(d) Use the Web Site for unauthorized commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation, or through linking with or artificially generating traffic to any other web site or web page; or
(e) Use the Web Site in any way that would affect Americab adversely or reflect negatively on Americab’s goodwill, name or reputation in Americab’s sole discretion.
5. Trademarks. Americab products and/or services referenced on the Web Site are either trademarks, licensed trademarks or registered trademarks of Americab. Other company names, products and/or services referenced on the Web Site may be trademarks of their respective owners. Nothing contained on the Web Site should be construed as granting, by implication or otherwise, any license or right to use any trademarks displayed on the Web Site. You may not use any Americab trademark unless you have an express written trademark license from Americab.
6. Promotions. The Web Site may contain or offer promotions, which may be governed by a separate set of rules that describe the promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid or restricted, and to determine the sponsor’s requirements of you in connection with the applicable promotion.
7. Copyrights and Other Intellectual Property and Related Complaints. You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. Americab encourages you to report any content on the Sites that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Sites infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Americab has a designated agent for receiving notices of copyright infringement and Americab follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Americab’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) 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; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) 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 (f) 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.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Americab will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
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8. Disclaimer. BY USING THE WEB SITE, YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THE WEB SITE AND THE INTERNET GENERALLY. THE WEB SITE IS PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AMERICAB AND ITS PRINCIPALS, EMPLOYEES, AGENTS, SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, THE "AMERICAB PARTIES") MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEB SITE; (B) MESSAGES SENT FROM OR TO THE WEB SITE; (C) MATERIALS, SOFTWARE, INFORMATION OR THIRD PARTY CONTENT PROVIDED ON THE WEB SITE; (D) THE SUBMISSIONS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEB SITE; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE WEB SITE OR ANY LINKED SITE. THE AMERICAB PARTIES DO NOT WARRANT THAT THE WEB SITE, ANY OF THE WEB SITE’ FUNCTIONS OR ANY CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE WEB SITE OR THE SERVERS THAT MAKE THEM AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE AMERICAB PARTIES DO NOT WARRANT THAT YOUR USE OF THE WEB SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, THE AMERICAB PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTY. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEB SITE, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE WEB SITE. FURTHER, AMERICAB DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, PRODUCT LIABILITY, AND FREEDOM FROM ERRORS, VIRUSES, AND BUGS OR OTHER HARMFUL COMPONENTS.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.
9. Limitation of Liability. IN NO EVENT WILL THE AMERICAB PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ECONOMIC, EXEMPLARY OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO: (A) THE WEB SITE; (B) MESSAGES SENT FROM OR TO THE WEB SITE; (C) MATERIALS, SOFTWARE, INFORMATION OR THIRD PARTY CONTENT PROVIDED ON THE WEB SITE; (D) THE SUBMISSIONS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEB SITE; (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE WEB SITE OR ANY LINKED SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE AMERICAB PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEB SITE; (H) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE AMERICAB PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEB SITE).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE AMERICAB PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE AMERICAB PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE AMERICAB PARTIES.
NOTWITHSTANDING ANY OTHER PROVISION IN THESE TOU, IN NO EVENT SHALL THE AMERICAB PARTIES BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER IN AN AMOUNT GREATER THAN TEN DOLLARS ($10) (INCLUDING WITHOUT LIMITATION ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, AND DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION), EVEN IF THE AMERICAB PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND ON ANY THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
BY ACCESSING ANY OF THE WEB SITE, I UNDERSTAND THAT I MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, I ACKNOWLEDGE THAT I 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
10. Indemnification. You agree to indemnify, defend, and hold the Americab Parties harmless from and against any and all claims, actions, losses, expenses, damages, and costs (including reasonable attorneys’ fees), resulting from: (i) your use of the Web Site or the Materials; (ii) any breach or violation of these TOU or any law, rule, or regulation; (iii) the posting, submission, display, transmission, exchange, performance, publication, distribution, sharing, dissemination, promotion, broadcast, and/or circulation of your Submissions; (iv) the theft, disclosure or misappropriation of your password; or (v) your authorization of anyone else to use your password.
Americab reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with Americab in the defense of any such claim, action, settlement, or compromise negotiations, as requested by Americab. In no event will you settle any claim or action without Americab’s prior written approval.
11. Third-Party Sites. References to third parties, their products, and/or services does not imply endorsement by Americab thereof. The Web Site may be linked to other sites, which are not maintained by Americab. Americab is not responsible for the content of those sites. These links are provided for convenience purposes and are not under the control of the Americab Parties. Americab does not make any representations and warranties, express or implied, regarding the content of any of these linked sites. The inclusion of any link to such sites does not imply endorsement, sponsorship, or recommendation, with respect to any third party, any third party’s site, the content of any third party’s site, or any products or services provided by a third party, by Americab of the sites. Americab disclaims any liability for links: (i) from another site to the Web Site; and (ii) to another site from the Web Site. In order to link to the Web Site, all users must comply with Linking Terms provided in Section 12 below. Once you link to another site, you are subject to the policies and practices of the new site.
12. Linking Terms. By linking to the Web Site, all "Linkers" accept and acknowledge the following terms of linking: Linker agrees that it will not at any time do or cause to be done any act or thing in any way impairing the image/reputation of Americab in its sole discretion. Linker shall not in any manner represent that it is endorsed by Americab or that Linker is acting in a representative capacity of Americab. Linker shall not utilize the Americab name nor its relationship with Americab for purposes of or in any manner which intentionally gives rise to advertising or publicity, unless Americab shall consent to such use in writing prior to publication.
Regardless of the foregoing, Americab reserves the right to rescind this consent to link to the Web Site with or without cause at any time. In such event, Linker shall remove its link to the Web Site within 24 hours of receipt of notice from Americab.
13. Dated Materials. Materials contained in the Sites or in links from the Sites are dated as of the date originally issued or indicated on the Material and may no longer be accurate. Americab assumes no obligation to update such Materials.
14. Revisions to TOU. Americab reserves the right to modify or add to these TOU at any time without prior notice ("Updated TOU"). You agree that we may notify you of the Updated TOU by posting them on the Web Site so that they are accessible via a link on the home page of the Web Site, and that your use of the Web Site after we have posted the Updated TOU (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated TOU. Therefore, you should review these TOU before using the Web Site. The Updated TOU will be effective as of the time of posting, or such later date as may be specified in the Updated TOU, and will apply to your use of the Web Site from that point forward.
15. Jurisdiction. The Web Site is managed by Americab in California, United States of America. These TOU shall be governed by and construed in accordance with the laws of the state of California, without giving effect to any principles of conflicts of laws and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Web Site, the use or access thereof, or these TOU must be in the state or federal courts located in Sacramento County, California and you hereby consent and submit to the exclusive personal jurisdiction and venue of the courts located in Sacramento County, California for any such legal proceeding and agree that you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens, or otherwise. Any cause of action or claim you may have with respect to the Web Site or these TOU must be commenced within one year after such claim or cause of action arose, or, if multiple causes, from the date the first such cause of action arose.
16. Termination. Americab may terminate your use of the Web Site at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party. Americab also reserves the right to use any technological, legal, operational, or other means available to enforce these TOU, including without limitation, blocking specific IP addresses or access to the Web Site.
17 . Miscellaneous. These TOU and any additional terms provided by Americab constitute the entire understanding and agreement between you and Americab and supersede any and all prior or inconsistent understandings relating to the Web Site, the Materials and the Submissions.
Any failure of Americab to exercise or enforce any right or provision of these TOU will not constitute a waiver of such right or provision. No waiver by Americab of any provision of these TOU will be of any force or effect unless made in writing and signed by a duly authorized officer of Americab.
If any provision of these TOU is held to be illegal, invalid, or unenforceable, then the provision will be deemed severable from these TOU and will not affect the validity and enforceability of any remaining provisions. The section titles in these TOU are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these TOU will not be construed against Americab by virtue of having drafted them.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these TOU. Except as otherwise expressly provided in these TOU, there will be no third-party beneficiaries to these TOU.
You understand and agree that Americab will determine your compliance with these TOU in its sole discretion. Any violation of these TOU may be referred to law enforcement authorities.