Terms of Use

IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE ("TERMS") BEFORE USING THIS WEB SITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. Bess McCarty ("Company" or "we," "our," or "us") owns or controls, and provides access to, bessmccarty.com and related websites (however accessed and/or used, whether via personal computers, mobile devices or otherwise) or other interactive features that are accessible or downloadable through bessmccarty.com and that link to these TERMS (collectively, "Web Site"). THESE TERMS GOVERN YOUR USE OF THE WEB SITE. These TERMS only apply to the Web Site, and not to any other web site or any offline activities by Company (unless specifically stated). You agree to these TERMS 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 TERMS, DO NOT USE THE WEB SITE. Table of Contents 1. Acceptance of Terms 2. Description of Web Site Services 3. Intellectual Property Ownership; License 4. Links To Other Web Sites 5. Our Linking Policy 6. Acceptable Use 7. User Accounts, Additional Terms & End User License Agreements 8. Promotions 9. Copyrights & Copyright Agents 10. Third Party Content and Information 11. Information You Submit 12. Disclaimer of Warranties 13. Disclaimers/Limitation of Liability 14. Indemnity 15. Governing Law 16. Jurisdiction & Venue 17. Miscellaneous 18. Termination Return to Top 1. Acceptance of Terms Your use of the Web Site is subject to these TERMS, which may be updated by us from time to time without notice to you. It is important for you to refer to these TERMS from time to time to make sure that you are aware of any additions, revisions, or modifications that we may have made to these TERMS. Your use of the Web Site constitutes your acceptance of these TERMS. Return to Top 2. Description of Web Site Services The Web Site currently provides users with access to a collection of online resources, which may include without limitation, various communications tools, online forums, shopping services, personalized content and branded programming. Unless explicitly stated otherwise, any new features that augment or enhance the Web Site, including the release of new or specialized Company web-based services, are subject to these TERMS. In some instances, these TERMS and a separate end user license or similar agreement will apply to a service or product offered by Company and/or the Web Site. We may add, change, remove, suspend or discontinue any aspect of the Web Site at any time without notice. We may also impose limits on certain features and services or restrict access to parts of or all of the Web Site without notice or liability. In order to use the Web Site, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment and technology necessary to make such connection to the Internet (e.g., personal computer, modem, cell phone, other access device, etc.). Return to Top 3. Intellectual Property Ownership; License The past, present and future Web Site content, 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, "Content") are protected by applicable copyrights and other proprietary (including, but not limited to, intellectual property) rights and are the property of Company, its parent, subsidiaries, affiliates, or its licensors. Except as expressly set forth in these TERMS or otherwise expressly granted to you in writing by Company, no rights (either by implication, estoppel or otherwise) are granted to you. The copying, reproduction, rearrangement, sales, leasing, renting, distribution, redistribution, modification, downloading, exchanging, creating of derivative works, uploading, posting, transmitting, or publication by you, directly or indirectly, of the Content, including the removal or alteration of advertising, except pursuant to the express limited grant of rights hereunder, is strictly prohibited. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Web Site. Copying, archiving or storing any part of the Web Site for a purpose that is not permitted by these TERMS is expressly prohibited without prior written permission from Company or the applicable copyright holder as identified on the Web Site. Subject to your strict compliance with these TERMS, Company grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, view, use and/or play a single copy of the Content (excluding source and object code), provided that you: (i) retain all trademark, copyright and other proprietary notices contained in the original Content or any copy you may make of the Content; (ii) do not allow or aid or abet any third party (whether or not for your benefit) to copy or adapt the object code of the Web Site's software, HTML, JavaScript, or other code; reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Web Site creates to generate its web pages; or any software or other products or processes accessible through the Web Site; and (iii) do not insert any code or product to manipulate the Content in any way that affects any user's experience. Return to Top 4. Links To Other Web Sites The Web Site may contain hyperlinks to other web sites ("Other Sites"). If you use the hyperlinks to access these Other Sites, you will leave the Web Site and your browser will be re-directed to the Other Sites. The Other Sites may have their own terms of service and privacy policy and those Other Sites may have different practices and requirements than the Web Site. Company may not have knowledge of, and is not responsible for, the content presented by any Other Site. As such, Company does not warrant or make any representation regarding the legality, accuracy, or authenticity of content presented by Other Sites. The hyperlinks to Other Sites do not constitute an endorsement by Company of any Other Site(s) or resources, or their content. The Web Site is only providing these links to you as a convenience. Return to Top 5. Our Linking Policy Any web site that links to the Web Site: (a) must not frame or create a browser or border environment around any of the Content of the Web Site; (b) may link to, but not replicate, the Content; (c) must not imply that Company or the Web Site is endorsing or sponsoring it or its products, unless Company has given its prior written consent; (d) must not present false information about Company or its products or services; (e) must not use any Company trademarks without the prior written permission from Company; and (f) must not contain content that could be construed as distasteful, offensive or controversial. By linking to any of the Web Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these TERMS, we reserve the right to deny permission to link to the Web Site for any reason in our sole and absolute discretion. Return to Top 6. Acceptable Use You will not use the Web Site to: • 1. Upload, post, e-mail, transmit, display, distribute, promote, or otherwise make available: (i) any material that is false, unlawful, threatening, tortious, disparaging (including disparaging of Company, its parent, subsidiaries or affiliates), anything that adversely affects Companyís business such as discouraging any person or entity from advertising with, linking to or supplying Company, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, racist, sexually explicit, ethnically or culturally offensive, indecent, or that promotes violence, racial hatred, terrorism, or illegal acts, or is otherwise objectionable in Company's sole discretion; (ii) information, software, or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright (including, without limitation, offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial registration numbers for software programs, or any type of cracker utilities), trademark, patent, trade secret, rights of privacy or publicity or any other proprietary right; (iii) material of any kind that contains a virus, Trojan horse, time bombs, worms, spyware, bots, any automated use of the system, such as scripts, or other harmful component or restricts or inhibits any other user's uninhibited use and enjoyment of the Web Site, interferes with or disrupts the Web Site or servers or networks connected to the Web Site, or disobeys any requirements, procedures, policies or regulations of networks connected to the Web Site; (iv) information or material of any kind that constitutes or contains false or misleading indications of origin or statements of fact, including, without limitation, by forging any TCP/IP packet header, any part of the header information in any transmission to the Web Site, or otherwise manipulating identifiers in order to disguise the origin of any content transmitted to the Web Site; (v) any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," requests for money, petitions for signature, or any other form of solicitation; (vi) any material that encourages, promotes, solicits or commits conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law; or (vii) otherwise make available any material that exploits or harms any individual, corporation or other entity; • 2. Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; • 3. Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Web Site are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges; • 4. Stalk, abuse, sexually exploit, violently exploit, act violently toward or otherwise harass another user; • 5. Use or attempt to use another's information, account, password, service or system except as expressly permitted; or • 6. Solicit or collect personal data including telephone numbers, addresses, last names, or email addresses, about other users. You represent, warrant and agree that you will comply with the above acceptable use policy. Return to Top 7. User Accounts, Additional Terms, and End User License Agreements Registration may be required for the use of certain portions of the Web Site (e.g., e-mail newsletters, sweepstakes, contests, specialized content downloads, retail sales, wireless alerts, etc.). In some instances, these TERMS and separate end user license agreements or terms of use that set forth additional conditions may apply to a service or product offered via the Web Site. To the extent there is a conflict between these TERMS and the terms of any applicable end user license or similar agreement, the end user license or similar agreement will control, unless the additional conditions expressly state that these TERMS will control. In cases where there are no additional terms or conditions stated for any such registrations, services or products, these TERMS will control. Registration data and certain other information about you are subject to the privacy policy posted at the Web Site on which you are providing your registration information. Please read that privacy policy for information on how your data will be handled. If you choose to provide information to the Web Site, you agree to provide only true, accurate, current and complete information. If you create a user account, you agree to accept responsibility for all activities that occur under your account or password, if any, and agree you will not sell, transfer or assign your user account. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer, cell phone (or other internet access device, as applicable) so that others may not access any password-protected portion of the Web Site using your name, user name or password in whole or in part. Return to Top 8. Promotions The Web Site may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules that describe the sweepstakes, contest or promotion and may have eligibility requirements. 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 sweepstakes, contest or promotion. Return to Top 9. Copyrights and Copyright Agents If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. ß 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. Company's copyright agent for notice of claims of copyright infringement on or regarding the Web Site can be reached as follows: By phone: Bess McCarty 512-986-5288 By email: bess@bessmccarty.com We reserve the right to terminate the accounts of users who (in our reasonable discretion) are repeat infringers. Return to Top 10. Third Party Content and Information The Web Site contains Content that is provided for your convenience and enjoyment. Third parties provide some of the Content. You should be aware that the Content might contain errors, omissions, inaccuracies, outdated information, and inadequacies and that the Content may be subject to terms and conditions, which may be found on the Web Site or in the documents and policies of third parties. We make no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any Content and will not be liable for any lack of the foregoing. Third party advertisers may offer goods, services and other materials to you on the Web Site. Your correspondence and business dealings with others found on or through the Web Site including, without limitation, the payment and delivery of products and services, and any terms, conditions, warranties and representations associated with such dealings, are solely between you and the advertiser. You agree that Company will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or the offering of such products, services, and other Content on the Web Site. Under certain circumstances, we may permit third party users to upload content, in which event you may be exposed to offensive, indecent or objectionable content. Descriptions of, or references to, products, services or publications within the Web Site do not imply endorsement of that product, service or publication. Return to Top 11. Information You Submit From time to time, the Web Site may contain or describe functionality or other methods through which you can upload or otherwise submit information, data, software, messages, photographs, audio, video, text and other materials to the Web Site ("Your Upload Information"). For example, the Web Site may offer forums, bulletin boards, wiki, chat rooms or other interactive areas ("User Forums"). Company, its parent, subsidiaries or affiliates or the directors, officers, employees, or other representatives of each of them do not endorse the content posted in User Forums. Company reserves the right, but is not obligated, to post, delete, move or edit Your Upload Information, in whole or in part, submitted by you to a User Forum for any reason in their sole discretion. Company reserves the right to suspend or terminate your access to the Web Site and pursue all legal remedies if we believe your Upload Information infringes another's copyright or otherwise violates any law, rule or regulation. You acknowledge and agree that you are prohibited from accepting payment for Your Upload Information, including, without limitation, accepting payment for the inclusion of a logo, brand or other commercial content, in Your Upload Information. All of Your Upload Information is your sole responsibility. This means that you, and not Company, are entirely responsible for all of Your Upload Information that you upload, post, e-mail, transmit or otherwise make available via the Web Site. If you post personal information in User Forums or on other publicly available areas of the Web Site, then you may receive unsolicited messages from third parties. Company cannot ensure the security of any information you post on publicly available areas of the Web Site. Under no circumstances will we be liable in any way for any of Your Upload Information including, but not limited to, any errors or omissions in Your Upload Information, or for any loss or damage of any kind incurred as a result of Your Upload Information. You represent that Your Upload Information is an original work by you or you have all necessary rights in it and to submit it to Company under the terms of these TERMS; that it is not defamatory; and that it does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy or any other proprietary rights or otherwise violate any law, rule, or regulation. You further agree that you are solely liable for any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees, connected to or arising from your breach of any representation or warranty, or other violation of the terms of the TERMS or any User Agreement. Except as otherwise described in the posted privacy policy or other agreement on the Web Site at which you provide Your Upload Information, Your Upload Information will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure to anyone, including but not limited to claimed intellectual property owners. When you upload Your Upload Information via the Web Site, you irrevocably grant to: (i) Company, its parent, subsidiaries, affiliates, and partners; and (ii) users of the Web Site a non-exclusive, worldwide, royalty-free license containing, without limitation, all right, title and interest in Your Upload Information, including, without limitation, all patents, trademarks, service marks, trade names, trade identities, copyrights, trade secrets, logos, domain names, know-how, source code and object code, mask-work rights, inventions, moral rights, author's rights, algorithms, rights in packaging, goodwill and other intellectual property and proprietary rights whatsoever in Your Upload Information. You further agree that Company, its parent, subsidiaries, affiliates, and partners and the directors, officers, employees, licensees and other representatives of each of them will have the unfettered right throughout the universe, in perpetuity, without any credit or compensation to you, to use, reuse, modify, alter, display, archive, publish, sub-license, perform, reproduce, disclose, transmit, broadcast, post, sell, translate, create derivative works of, distribute and use for advertising, marketing, publicity and promotional purposes, any of Your Upload Information or portions of Your Upload Information, and your name, voice, likeness, biographical information, logos, marks, trade names or other identifying information, or other information provided or obtained, in any form, media, software or technology of any kind now known or developed in the future for any purposes whatsoever including, without limitation, for purpose of advertising or promoting Company, its products and/or services or developing, manufacturing and marketing products using Your Upload Information. Without limiting the foregoing, the licenses you grant Company in these TERMS permit Company to publicly display, publicly perform, distribute, and reproduce Your Upload Information, in whole or in part, alone or with other material on or via the Internet, including without limitation, any Company-authorized online and offline receiving and playback devices, by any means of transmission now known or hereafter devised. You hereby waive any moral rights you may have in and to any of Your Upload Information, even if such material is altered or changed in a manner not agreeable to you. You agree and understand that Company, its parent, subsidiaries, affiliates, and partners are not obligated to use Your Upload Information submitted through the Web Site or otherwise, and may alternatively choose to discard, and limit or block access to Your Upload Information without any liability whatsoever. You acknowledge and agree that Company may have access to, create or have created literary materials and ideas which may be similar or identical to Your Upload Information in theme, idea, plot or format or in other respects. Accordingly, and without limiting other provisions in these TERMS, by submitting Your Upload Information, you agree to waive any claims you may have against Company for copyright infringement, breach of confidence, theft of ideas, violation of trade secrets or any other action in contract or tort. You acknowledge that the Web Site, through Company, its parent, subsidiaries, affiliates, and partners undertakes no obligation to pre-screen Your Upload Information, but that it has the right, in its sole discretion to modify, transmit over various networks, refuse, move, block access to or remove any of Your Upload Information. You agree that you must evaluate, and bear all risks associated with, the use of any of Your Upload Information including, but not limited to, any reliance on the accuracy, completeness, or usefulness of Your Upload Information. Since Company, its parent, subsidiaries, affiliates, and partners may not pre-screen user generated content, you may bear legal responsibility for others' exposure to any offensive indecent or objectionable content in Your Upload Information. If Your Upload Information is submitted to Company on physical media, such media will not be returned and will become the property of Company. Return to Top 12. Disclaimer of Warranties THE WEB SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE WEB SITE, IS PROVIDED "AS IS," "AS AVAILABLE, " AND "WITH ALL FAULTS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEB SITE; (B) THE CONTENT AND SOFTWARE ON AND PROVIDED THROUGH THE WEB SITE; (C) THE FUNCTIONS MADE ACCESSIBLE ON OR ACCESSED THROUGH THE WEB SITE; (D) THE MESSAGES AND INFORMATION SENT FROM THE WEB SITE BY USERS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEB SITE OR HYPERTEXT LINKS TO THIRD PARTIES; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEB SITE OR ANY LINKED SITE. COMPANY DOES NOT WARRANT THAT THE WEB SITE, ANY OF THE WEB SITE'S 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 MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEB SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, COMPANY SPECIFICALLY DISCLAIMS SUCH WARRANTIES. 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 OR THE CONTENT. FURTHER, COMPANY AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. COMPANY, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM SHALL NOT BE LIABLE FOR THE USE OF THE WEB SITE INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. 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. Return to Top 13. Disclaimers/Limitation of Liability YOU UNDERSTAND AND AGREE THAT COMPANY LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE WEB SITE AS SET FORTH BELOW: UNDER NO CIRCUMSTANCES SHALL COMPANY, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM (COLLECTIVELY, THE "COMPANY ENTITIES AND INDIVIDUALS") BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE WEB SITE, THE CONTENT, OR YOUR UPLOAD INFORMATION; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEB SITE; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEB SITE OR CONTENT;(4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (5) ANY ERRORS OR OMISSIONS IN THE WEB SITE'S TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY 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). IN NO EVENT WILL THE COMPANY ENTITIES AND INDIVIDUALS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY ENTITIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100). THE COMPANY ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER'S COMPUTER, MODEM, CELL PHONE, HARDWARE, SOFTWARE, 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. YOUR ACCESS TO AND USE OF THIS WEB SITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE WEB SITE OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEB SITE OR THE CONTENT. YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY'S 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, PROGRAM, TELEVISION SHOW, MOTION PICTURE OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY COMPANY AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES OR YOUR UPLOAD INFORMATION, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY COMPANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE OR OTHER AUDIO/VISUAL CONTENT OR YOUR UPLOAD INFORMATION OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO. BY ACCESSING THE WEB SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU 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." Return to Top 14. Indemnity You agree to defend, indemnify and hold harmless the Company Entities And Individuals with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees arising out of or in connection with this TERMS, including, without limitation: (a) your use of the Web Site; (b) your violation of these TERMS or any law, rule or regulation; (c) your use of the Content; or (d) any of Your Upload Information. You will cooperate as fully and reasonably as required by Company in the defense of any claim. Notwithstanding the foregoing, Company retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against Company herein under the terms and provisions of this Section 16 and in no event shall you settle any such claim without Company's prior written approval. Return to Top 15. Governing Law THESE TERMS AND THE INTERPRETATION OF THESE TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Return to Top 16. Jurisdiction and Venue You waive all rights to trial by jury in any action or proceeding instituted in connection with these TERMS and/or the Web Site. Any controversy or claim arising out of or relating to these TERMS and/or the Web Site shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of Texas, in the City of Austin, County of Travis, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Any matters or proceedings that are not subject to arbitration as set forth in this Section 18 of these TERMS and/or for entering any judgment on an arbitration award, shall take place in the State of Texas, in the City of Austin, County of Travis. You waive the defense of forum non conveniens. Return to Top 17. Miscellaneous You are solely responsible for compliance with applicable laws, rules, and regulations in connection with your use of the Web Site and the Content, including, without limitation, those governing your transmission or use of any software or data. These TERMS and any applicable end user license or similar agreements contain the sole and entire agreement between the parties with respect to the Web Site, the Content and Your Upload Information and supersedes any and all other prior written or oral agreements between them. The section titles in these TERMS are for your convenience only and do not have any legal or contractual effect. You agree that these TERMS will not be construed against Company by virtue of having drafted these TERMS. If any provision of these TERMS shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of these TERMS. No waiver on the part of Company of any of these TERMS will be of any force or effect unless made in writing and signed by a duly authorized officer of Company. Return to Top 18. Termination You understand and agree that Company will determine your compliance with these TERMS in its sole discretion. Company reserves the right to deny access to all or part of the Web Site and to deny access to any person in its sole discretion without notice or liability of any kind. Any violation of these TERMS may be referred to law enforcement authorities. Upon termination of your user account or access to the Web Site, or upon demand by Company, you must destroy all materials obtained from this Web Site and all related documentation. Return to Top