1. AGREEMENT
These Terms of Use (the "Agreement") constitute a legally binding agreement by and between OverheadGarageDoors.com (hereinafter, "OGD") and you ("You" or "Your") concerning Your use of OGD's website (the "Website") and the services available through the Website (the "Services"). By using the Website and Services, You represent and warrant that You have read and understood, and agree to be bound by, the Agreement and OGD's Privacy Policy (the "Privacy Policy"), which is incorporated herein by reference and made part of this Agreement. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND CEASE USING THE SERVICES.
As used in this Agreement:
"Member" means a registered user of the Website.
2. PRIVACY POLICY
By using the Website, You consent to the collection and use of certain information about You, as specified in the Privacy Policy. OGD encourages users of the Website to frequently check OGD's Privacy Policy for changes.
3. CHANGES TO AGREEMENT AND PRIVACY POLICY
Internet and wireless technology and the applicable laws, rules, and regulations change frequently. ACCORDINGLY, OGD RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AND ITS PRIVACY POLICY AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY THE POSTING OF A NEW VERSION OR A CHANGE NOTICE ON THE WEBSITE. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT AND THE PRIVACY POLICY PERIODICALLY. IF AT ANY TIME YOU FIND EITHER UNACCEPTABLE, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND CEASE USING THE SERVICES. Unless OGD obtains Your express consent, any revised Privacy Policy will apply only to information collected by OGD after such time as the revised Privacy Policy takes effect, and not to information collected under any earlier Privacy Policies.
4. ELIGIBILITY
BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. This Agreement is void where prohibited.
5. LICENSE
Subject to Your compliance with the terms and conditions of this Agreement, OGD grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. The Website, or any portion of the Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of OGD. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of OGD or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
6. USER INFORMATION; PASSWORD PROTECTION
In connection with Your use of certain Services, You may be required to complete a registration form. You represent and warrant that all information You provide on the registration form or otherwise in connection with Your use of the Website and Services will be complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy by visiting your personal and/or public profiles. For additional information, see the section concerning "User Ability to Access, Update, and Correct Personal Information" in OGD's Privacy Policy.
You will also be asked to provide, or may be given, a user name and password in connection with certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other Member at any time. You agree to notify OGD immediately of any unauthorized use of Your account, user name, or password. OGD shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by OGD, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of Your account or password.
7. PUBLIC PROFILES; INFORMATION PROVIDED BY BUSINESSES
As part of registration with the Website, Businesses must create public profiles, which contain certain indentifying information. In addition, Businesses have the option to post photographs and other information on their public profiles. OGD may, in its sole discretion, feature Business public profiles. OGD relies on its Businesses to provide current and accurate information, and OGD does not, and cannot, investigate information contained in Business public profiles. Accordingly, OGD must assume that information contained in each Business public profile is current and accurate. OGD DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF BUSINESS PROFILE INFORMATION, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY BUSINESSES BY MEANS OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH THE SERVICES.
8. YOUR INTERACTIONS WITH BUSINESSES; RISK ASSUMPTION
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH BUSINESSES. YOU ACKNOWLEDGE AND UNDERSTAND THAT OGD HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS BUSINESSES; (B) INQUIRE INTO THE BACKGROUNDS OF ITS BUSINESSES; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS BUSINESSES, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS CONTAINED IN PUBLIC BUSINESS PROFILES. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER BUSINESSES, PARTICULARLY IF YOU DECIDE TO PATRONIZE A BUSINESS. OGD DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS BUSINESSES. IN NO EVENT SHALL OGD BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY BUSINESSES CONDUCT IN CONNECTION WITH USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH BUSINESSES. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY OGD AND ITS RESPECTIVE OWNERS, AGENTS, OFFICERS AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE WEBSITE AND SERVICES.
9. BUSINESS DISPUTES
You agree to hold OGD harmless in connection with any dispute or claim You make against any Business.
10. CONSENT TO RECEIVE EMAIL FROM OGD
By registering with the Website and becoming a Business listing, you thereby consent to receive periodic email communications regarding the Services, including confirmation emails. As part of registration, You may also elect to receive periodic email communications regarding special offers and other promotions (collectively, "Special Offers"). You may opt-out of receiving Special Offers at any time by (a) editing Your "Mail Settings" (b) following the unsubscribe instructions contained in each Special Offer; or (c) sending an email to admin@overheadgaragedoors.com.
11. CONSENT TO RECEIVE COMMUNICATIONS
By registering with the Website and becoming a listed Business, you thereby consent to receive electronic communications, including email, instant messages and telephone calls.
12. FEES
Access to the Website and use of the Services is free. You acknowledge and agree that OGD reserves the right to charge for access to the Website and use of the Services and to change its fees in OGD's sole discretion.
13. THIRD-PARTY WEBSITES
The Website is linked with the websites of third parties ("Third-Party Websites"), some of whom may have established relationships with OGD and some of whom may not. OGD does not have control over the content and performance of Third-Party Websites. OGD HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, OGD DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. OGD DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE ACCESSING OR USING A THIRD-PARTY WEBSITE, YOU ARE RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE THIRD-PARTY WEBSITES.
14. USER CONTENT
"User Content" is any content, materials or information, not including Personal Information (as defined in OGD's Privacy Policy), that You upload or post to, or transmit, display, perform or distribute by means of, the Website, whether in connection with Your use of Services or otherwise. YOU HEREBY GRANT OGD AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE "OGD Parties") A PERPETUAL, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE, ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE WEBSITE, SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY. YOU FURTHER AGREE THAT THE OGD PARTIES MAY PUBLISH OR OTHERWISE DISCLOSE YOUR NAME AND/OR ANY USER NAME OF YOURS IN CONNECTION WITH THEIR EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE OGD PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the OGD Parties under this section.
15. PUBLIC FORUMS; RELIANCE ON THIRD-PARTY CONTENT, ADVICE, ETC.
"Public Forum" is any area, site or feature offered as part of the Website (including without limitation public profiles, discussion forums, message boards, blogs) that enables You (a) to upload, submit, post, display, perform, distribute and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other Members or other Website visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum and for the consequences of submitting or posting same. OGD DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.
Opinions, advice, statements, offers, or other information made available by means of the Website and Services by third parties, including without limitation Members, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content. OGD DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION ON THE WEBSITE; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE WEBSITE AND SERVICES. UNDER NO CIRCUMSTANCES WILL OGD BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO OR BY ANY MEMBERS.
16. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that you may be held legally responsible for damages suffered by other Members or third parties as the result of Your remarks, information, feedback or other content posted or made available on the Website that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Act of 1996, OGD is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the Website.
17. OBJECTIONABLE CONTENT
You represent and warrant that you shall not use the Website or Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of hard core illegal substances and drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other OGD agreement or policy; or (i) is generally offensive or in bad taste, as determined by OGD (collectively, "Objectionable Content"). OGD DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENTS OF THE WEBSITE AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, OGD reserves the right to terminate Your use of the Website and Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. OGD, in its sole discretion, may delete any Objectionable Content from its servers. OGD intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
18. PROHIBITED USES
OGD imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not: (a) contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to OGD or any other Member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) create more than one unique public profile; (e) harvest or otherwise collect information about OGD users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (g) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing"; (j) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (l) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the OGD Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
19. INTELLECTUAL PROPERTY
(a) Compliance with Law
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. THE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS RESTS SOLELY WITH YOU.
(b) Trademarks
OverheadGarageDoors.com and Overhead Garage Doors (collectively, the "OGD Marks") are trademarks or registered trademarks of Mobile Motion, Inc. Other trademarks, service marks, graphics, logos and domain names appearing on the Website may be the trademarks of third-parties. Neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the OGD Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the OGD Marks generated as a result of Your use of the Website and Services will inure to the benefit of Mobile Motion, Inc, and You agree to assign, and hereby do assign, all such goodwill to Mobile Motion, Inc. You shall not at any time, nor shall You assist others to, challenge Mobile Motion, Inc's right, title, or interest in or to, or the validity of, the OGD Marks.
(c) Copyrighted Materials; Copyright Notice
All content and other materials, with the exception of User Content, available through the Website and Services, including without limitation the Overhead Garage Doors logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Mobile Motion, Inc. or are the property of OGD's licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2009 to the present, Mobile Motion, Inc. ALL RIGHTS RESERVED.
(d) DMCA Policy
As OGD asks others to respect OGD ‘s intellectual property rights, OGD respects the intellectual property rights of others. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want OGD to delete, edit, or disable the material in question, you must provide OGD with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 OGD to locate the material; (d) information reasonably sufficient to permit OGD to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) 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; and (f) 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. For this notification to be effective, you must provide it to OGD's designated agent at:
Copyright Agent
copyrightagent@overheadgaragedoors.com
20. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES.
OGD, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, OGD, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER OGD NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER OGD NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE OR SERVICES.
(b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD OGD OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
(c) LIMITATION OF LIABILITY
THE LIABILITY OF OGD AND ITS LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OGD OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO OGD OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF OGD AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL $25. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN OGD AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
(d) APPLICATION
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND OGD OR BETWEEN YOU AND ANY OF OGD'S ITS LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. OGD'S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
21. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other OGD policies, and with any applicable laws or regulations, including without limitation, United States export control laws. You further represent and warrant that You are not located in, under the control of, or a national or resident of any country which the United States has (i) embargoed goods, (ii) identified as a "Specially Designated National", or (iii) placed on the Commerce Department's Table of Deny Orders.
22. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You agree to defend, indemnify and hold harmless OGD and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Industry Professionals (collectively, the "Indemnified Parties") from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, "Claims"), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website or Services; or (iii) Your provision to OGD or any of the Indemnified Parties of information or other data.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
23. GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, and this Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in Los Angeles, California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
(a) Requirement of Arbitration.
You agree that any dispute, of any nature whatsoever, between You and OGD arising out of or relating to the Website, Services, or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Los Angeles, California unless You and OGD mutually agree to a different arbitrator, who shall render an award in accordance with the substantive laws of California and JAMS' Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS' fee and reasonable attorney's fees) to the prevailing party.
(b) Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not preclude You or OGD from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or OGD from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING "EQUITABLE RELIEF" WILL BE THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
24. TERMINATION
(a) By OGD
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, OGD RESERVES THE RIGHT TO, IN OGD'S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
(b) Automatic Termination Upon Breach By You
This Agreement shall automatically terminate in the event that You breach any of this Agreement's representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by OGD.
(c) By You
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to OGD notice of Your intention to do so, in the manner required by this Agreement.
(d) Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, OGD may, but has no obligation to, in OGD's sole discretion, delete from OGD's systems all User Content, Your Personal Information and any other files or information that You made available to OGD or that otherwise relate to Your use of the Website or Services. Subsequent to termination, OGD reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP mapping and direct contact with Your Internet Service Provider.
(e) Legal Action
If OGD, in OGD's discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, OGD will be entitled to recover from You as part of such legal action, and You agree to pay, OGD's reasonable costs and attorneys' fees incurred as a result of such legal action. The OGD Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
(f) Survival
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1-3, 6-9, 13-23, 26 will survive any termination of this Agreement. For clarification, termination of this Agreement will not relieve You of Your obligation to pay any fees owed OGD.
25. NOTICES
All notices required or permitted to be given under this Agreement must be in writing. OGD shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to OGD. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH OGD IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY OGD OF AN EMAIL TO THAT ADDRESS. You shall give any notice to OGD by means of: (i) hand delivery; (ii) certified U.S. mail, return receipt requested, postage prepaid; or (iii) overnight courier, each as send to 1229 Hermosa Avenue, Hermosa Beach, CA 90254. All notices to OGD will be deemed received as follows: (i) if by hand-delivery, on the date of delivery; (ii) if delivery by U.S. mail, on the date of receipt appearing on a return receipt card; or (iii) if by overnight courier, on the date the receipt is confirmed by such courier service. You agree that any notice received from OGD electronically satisfies any legal requirement that such notice be in writing.
26. GENERAL
This Agreement constitutes the entire agreement between OGD and You concerning Your use of the Website and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of OGD or by the unilateral amendment of this Agreement by OGD and by the posting by OGD of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of OGD. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and OGD are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for the OGD Parties and the Indemnified Parties as and to the extent set forth in Sections 14, 18, 22 and 24(e), and OGD's licensors and suppliers as and to the extent expressly set forth in Section 20, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to OGD and OGD's licensors and suppliers, and would therefore entitle OGD or OGD's licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.