Terms of Service

 

Effective Date: June 1, 2018

 

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS WEBSITE AND ANY OTHER WEBSITES OF GEOCKO, INC. D/B/A LIVESTORIES (THE “COMPANY”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE TOOLS AND SERVICES ON IT ARE CONTROLLED BY COMPANY.  THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESS OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES, TOOLS AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. 

 

1.         Use of the Services and Company Properties.  The Website, the Services, and the software and systems used by the Company to make the Website and Services available (collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the terms herein, including the payment of applicable fees, the Company grants to you a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services for your internal business purposes and/or academic and research purposes.  If you have purchased a subscription to the Services, you may permit any named employees or contractors of your company for whom fees have been paid (“Named Users”) to access the Service in accordance with these Terms, during the period for which fees have been paid.  For clarity, only Named Users are permitted to access and use any subscription-based Services.

      1.1           Updates.  You understand that Company Properties are evolving.  As a result, Company may require you to accept updates to Company Properties that you have installed on your computer or mobile device.  You acknowledge and agree that Company may update Company Properties with or without notifying you.  You may need to update third-party software from time to time in order to use Company Properties.

      1.2           Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website,  (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company, other than webpages generated via the Company Properties for the purpose of publishing Content; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Terms.  Company, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of Company Properties terminates the licenses granted by Company pursuant to the Terms.

      1.3           Third-Party Materials.  As a part of Company Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.

 

2.              Registration.

      2.1           Registering Your Account.  In order to access certain features of Company Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is an end user of the Company Properties (“User”) who has registered an account on the Website (“Account”).

      2.2           Registration Data.  In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.   You may not share your Account or password with anyone, and Registered Users may not share their account credentials with anyone (including other Registered Users), and you agree to (x) notify Company immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.

      2.3           Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.

      2.4           Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to Company Properties, including but not limited to, a mobile device that is suitable to connect with and use Company Properties, in cases where the Services offer a mobile component.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Company Properties.

 

3.              Responsibility for Content.

      3.1           Types of Content.  You acknowledge that all data, information, text, images, videos, audio-visual information, materials and content (collectively, “Content”), including Company Properties, is the sole responsibility of the party from whom such Content originated.  This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and that you and other Users of Company Properties, and not Company, are similarly responsible for all Content they Make Available through Company Properties (“User Content”). Our Service also aggregates and makes available public information, such as census data and data from government organizations (collectively, “Public Data”).  We are not responsible for any Public Data, including the accuracy, completeness, truthfulness or legality thereof.

      3.2           No Obligation to Pre-Screen Content.  You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, User Content and Public Data), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours.  Without limiting the foregoing, Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

      3.3           Storage.  Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on Company Properties.  Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content or Public Data; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties.  You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion.

      3.4           Removal of Published Content. Our Service may enable Users to purchase licenses to publish their Content through the use of the Company Properties. Upon termination of the User’s license, we typically will continue to publicly host your Content on the Company Properties. However, we reserve the right to permanently remove or delete such Content from our servers. If you purchase a license to publish any of Your Content on the Company Properties, you agree that the Company has no responsibility or liability for the deletion of Your Content following the expiration or termination of your license.

 

4.              Ownership.

      4.1           Company Properties.  Except with respect to Public Data, Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties. 

       4.2           Other Content.  Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Company Properties.

      4.3           Your Content.  Company does not claim ownership of Your Content.  However, when you as a User post or publish Your Content on or in Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. 

      4.4           License to Your Content.  Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Company Properties to you and to our other Users.  Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Company Properties.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated aboveYou agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties.

      4.5           License to Your Name.  Our Services enable Users to post their Content on the Website and Services, and as such we may need to use and display the name(s), mark(s), trade name(s) and/or logo(s) (collectively, “Marks”) in order to attribute and market such Content.  Accordingly, you hereby grant to the Company a non-exclusive, non-transferable, royalty-free, and fully-paid right and license to use, display and reproduce your Marks in order to provide the Services and market Your Content.

      4.6           Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Company (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties.

 

5.              User Conduct. In connection with your use of Company Properties, you shall not:

      5.1           Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;

      5.2           Harm minors in any way;

      5.3           Impersonate any person or entity, including, but not limited to, Company personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;

      5.4           Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);

      5.5           Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;

      5.6           Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;

      5.7           Stalk or otherwise harass any other User of our Company Properties; or

      5.8           Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

 

6.              Investigations.  Company may, but is not obligated to, monitor or review Company Properties and Content at any time.  Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law.  Although Company does not generally monitor user activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.

 

7.              Fees and Purchase Terms.

      7.1           Payment.  You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to signing up for the Services.  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Company with your credit card number and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required.  You agree to immediately notify Company of any change in your billing address or the credit card or PayPal account used for payment hereunder.  Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to you.

      7.2           Service Subscription Fees.  You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the commencement of your subscription (each, a “Service Commencement Date”), or as otherwise when due in accordance with your order.  Unless otherwise agreed upon by you and the Company in writing, each subscription will commence as of the Service Commencement Date and continue for the period for which fees have been paid.  Upon the expiration of such term, your subscription will automatically renew in accordance with the terms of your order, unless you provide at least thirty (30) days written notice prior to the expiration of the then-current subscription term. Except as set forth in the Terms, all fees for the Services are non-refundable.  No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

      7.3           Additional Named Users.  If you wish to add additional Named Users, you may order such additional subscriptions at any time by executing a written order, and upon Company’s written acceptance of such order, the Company will make access to the Service available to such Named Users.

      7.4           Taxes.  Company’s fees are net of any applicable Sales Tax.  If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense we may incur in connection with such Sales Taxes.  Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

      7.5           Free Trials and Other Promotions.  Any free trial or other promotion that provides paid subscription level access to the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact Company to have the charges reversed. 

      7.6           Disputes.  You must notify us in writing within seven (7) days after receiving your invoice, if you dispute any of our charges on that invoice or such dispute will be deemed waived.  Billing disputes should be notified to the following address: LiveStories, Inc. attn: Billing, 1904 3rd Ave, Suite 900, Seattle, WA 98101.

 

8.              Indemnification.  You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Company Properties and any Public Data Made Available therein; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations.  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.  This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.

 

9.              Disclaimer of Warranties and Conditions.

      9.1           As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. 

(a)            COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.

(b)           ANY CONTENT, INCLUDING PUBLIC DATA, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c)            THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

(d)           NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(e)            From time to time, Company may offer new “beta” features or tools with which its users may experiment.  Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion.  The provisions of this section apply with full force to such features or tools.

      9.2           No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

      9.3           No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES.

 

10.              Limitation of Liability.

      10.1           Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

      10.2           Cap on Liability.  UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Company by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

      10.3           User Content and Public Data.  EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS EXPRESSLY SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, PUBLIC DATA, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

      10.4           Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

 

11.              Procedure for Making Claims of Copyright Infringement.  It is Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on Company Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: LiveStories, Inc. attn: Copyright, 1904 3rd Ave, Suite 900, Seattle, WA 98101 or copyright@livestories.com.

 

12.              Remedies.

      12.1           Violations.  If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations.  If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.

      12.2           Breach.  In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:

                (a)            Warn you via e-mail (to any e-mail address you have provided to Company)
                                   that you have violated the Terms;

                (b)            Delete any of Your Content provided by you or your agent(s) to Company
                                   Properties;

                (c)            Discontinue your registration(s) with the any of Company Properties;

                (d)           Discontinue your subscription to any Services;

                (e)           Notify and/or send Content to and/or fully cooperate with the proper law
                                  enforcement authorities for further action; and/or

                 (f)           Pursue any other action which Company deems to be appropriate.

 

13.              Term and Termination. 

      13.1           Term.  The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Terms.

      13.2           Termination of Services by CompanyIf timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Company is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.

      13.3           Termination of Services by YouIf you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Company's address set forth below.  THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.2. 

      13.4           Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password. In addition we may also delete all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

      13.5           No Subsequent Registration.  If your registration(s) with or ability to access Company Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

 

14.              Dispute Resolution.  Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us. 

 

      14.1           Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.  

      14.2           Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  Each party will be responsible for its respective arbitration and legal costs. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

      14.3           Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Company.   The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us. 

      14.4           Waiver of Jury Trial.  YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. 

      14.5           Waiver of Class or Other Non-Individualized Relief.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in San Mateo County, California.  All other claims shall be arbitrated. 

      14.6           30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: LiveStories, Inc. attn: Arbitration, 1904 3rd Ave, Suite 900, Seattle, WA 98101, or arbitration@livestories.com within 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

      14.7           Severability. Except as provided in subsection 14.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

      14.8           Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.

      14.9           Modification.  Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Company at the following address: LiveStories, Inc. attn: Arbitration, 1904 3rd Ave, Suite 900, Seattle, WA 98101, or arbitration@livestories.com.

 

15.              General Provisions.

      15.1           Electronic Communications.  The communications between you and Company use electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

      15.2           Release.  You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from your use of Public Data and Users Content.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

      15.3           Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

      15.4           Force Majeure.  Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

      15.5           Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to Company Properties, please contact us at: LiveStories, Inc. attn: Support, 1904 3rd Ave, Suite 900, Seattle, WA 98101, or support@livestories.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

      15.6           Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Mateo County, California

      15.7           Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

      15.8           Notice.  Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at the following address: LiveStories, Inc., 1904 3rd Ave, Suite 900, Seattle, WA 98101.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

      15.9           Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

      15.10        Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

      15.11        Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

      15.12        Entire Agreement.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

 

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