THIS WEB PAGE IS A LEGAL DOCUMENT ("AGREEMENT") BETWEEN YOU ("THE USER") AND THEISPOT ("CORPORATION"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THEISPOT WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THEISPOT WEB SITE. BY USING AND ACCESSING THEISPOT WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS AND USE THEISPOT WEB SITE. CORPORATION. MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY UPDATING THIS AGREEMENT. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
All material and content contained on the Site, including, but not limited to graphics, images, logos, articles, videos, animations, audio and digital clips, photographs, illustrations, icons, the compilation of all content on the Site, are the property of Theispot, its Members and/or third parties and is protected by United States and international laws. All trademarks, service marks, and trade names are proprietary to Theispot, its Members and/or third parties. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without express permission or by Stock license through Theispot. You agree to (i) abide by all copyright notices, trademark legends, author attributions, and other proprietary notices, (ii) make no modifications to the materials on the Site without express written permission, (iii) not download quantities of materials to a database that can be used to avoid future downloads from the Site. Except as may be permitted by law, you are required to obtain permission from the copyright owner or Theispot Stock License before reusing any copyrighted material on the Site. You acknowledge that you do not acquire any ownership rights by downloading material from the Site.
TERMS AND CONDITIONS
These Terms and Conditions ("Agreement") are made as of the Effective Date by and between theispot, a New York State corporation with offices located at: 420 Lexington Ave. ste. 3100 New York, NY 10170, ("Corporation") and the User, as defined hereunder.
WHEREAS, Corporation has developed and owns theispot.com (as defined hereinafter) for use and access by User via the Internet; and
WHEREAS, User desires to access and use the theispot.com in accordance with the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and Corporation hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
|(1)||Access: The term "access" and variants thereof (including, without limitation, "accessing" and "accessible") shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.|
|(2)||Theispot.com: The term "theispot" shall mean that certain Web Site referred to as theispot, which is located on the Internet at http://www.theispot.com, including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the Corporation System and made accessible to User through the Internet.|
|(3)||Effective Date: The term "Effective Date" shall mean the date the User accesses theispot.|
|(4)||Corporation Marks: The term "Corporation Marks" shall mean trademarks, trade names, service marks and trade dress of Corporation and parent companies, subsidiaries and affiliates of Corporation, including, without limitation, theispot.com.|
|(5)||Corporation System: The term "Corporation System" shall mean computer systems and communication equipment used for hosting theispot.com and providing User access to theispot.com.|
|(6)||Corporation Technology: The term "Corporation Technology" shall mean any and all Technology developed by or for Corporation|
|(7)||Internet: The term "Internet" shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.|
|(8)||Licensed Content: The term "Licensed Content" shall mean third party Technology or Graphic Images incorporated in whole or part into theispot.|
|(9)||Link: The term "Link" shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.|
|(10)||Password: The term "Password" shall mean that certain password and USER name assigned by Corporation to User for accessing some parts of theispot.com as may be modified from time to time as provided hereunder.|
|(11)||Policy Statement: The term "Policy Statement" shall mean those certain written statements of policies (in printed or electronic form) concerning access to the theispot as may be adopted by Corporation and as modified by Corporation from time-to-time.|
|(12)||Restatements: The term "Restatements" shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. 1839.|
|(13)||User: The term "User" shall mean the individual or entity accessing theispot.|
|(14)||Technology: The term "Technology" shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, proprietary visual works and graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.|
|(15)||Term: The term "Term" shall mean a period of time starting on the Effective Date.|
|(16)||Unauthorized Access: The term "Unauthorized Access" shall mean any access of theispot except for access during the Term for the exclusive purpose of viewing, browsing, and ordering products through theispot using the Password on behalf of User in accordance with this Agreement.|
|(17)||Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses theispot except for User and employees and agents of User authorized by User to access theispot for purposes of viewing, browsing, and ordering products through theispot during the Term using the Password on behalf of User in accordance with this Agreement.|
|(18)||Web Site: The term "Web Site" shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.|
ARTICLE II: SCOPE OF USE
Section 2.01 -- Access: Corporation hereby grants User a non-exclusive, non-transferable and revocable license to access theispot, during the Term, solely for viewing, browsing, and ordering products on or through theispot, subject to the terms and provisions of this Agreement.
Section 2.02 -- Policy Statement: During the Term, User shall comply with the Policy Statement. Corporation may modify the Policy Statement from time to time at the exclusive discretion of Corporation
Section 2.03 -- Password: User hereby accepts responsibility for, and shall be liable for, all access to certain parts of theispot in connection with the Password. User shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Corporation
Section 2.04 -- Unauthorized Access: User shall prevent Unauthorized Users from accessing theispot. User shall prevent Unauthorized Access to theispot.
Section 2.05 -- Cancellation: Corporation may cancel the Password, for convenience and in the exclusive discretion of Corporation, at any time. User may cancel the Password, for convenience and in the exclusive discretion of User, upon providing written notice of such cancellation to User in accordance with Section 5.07 of this Agreement. Upon cancellation of the Password, User shall immediately cease and desist any and all access to and attempts to access theispot.
ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title: Title to Theispot (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Corporation
Section 3.02 -- Unauthorized Use: User shall not copy or download theispot without the prior written consent of Corporation. User shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, theispot or its content without the prior written consent of Corporation or its content owners. All material and content contained on the Site, including, but not limited to graphics, images, logos, articles, videos, animations, audio and digital clips, photographs, illustrations, icons, the compilation of all content on the Site, are the property of Theispot, its Members and/or third parties and is protected by United States and international laws. All trademarks, service marks, and trade names are proprietary to Theispot, its Members and/or third parties. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without express permission or by Stock license through Theispot. You agree to (i) abide by all copyright notices, trademark legends, author attributions, and other proprietary notices, (ii) make no modifications to the materials on the Site without express written permission, (iii) not download quantities of materials to a database that can be used to avoid future downloads from the Site. Except as may be permitted by law, you are required to obtain permission from the copyright owner or Theispot Stock License before reusing any copyrighted material on the Site. You acknowledge that you do not acquire any ownership rights by downloading material from the Site.
Section 3.03 -- Trademarks: Corporation shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. User acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in theispot may be trademarks of their respective owners.
Section 3.04 -- Proprietary Information: User shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. User hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 3.05 -- No Contest: User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Corporation in connection with theispot.com.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties: User hereby acknowledges and agrees that Corporation (including officers, employees, agents, directors and independent contractors of Corporation) has not made or granted to User any express warranties concerning theispot.com or any products and services offered through theispot. User hereby acknowledges that theispot does not constitute grant of an express warranty concerning any products and services offered through theispot.com and User hereby waives any and all claims of warranty based on theispot.com.
SECTION 4.02 -- WARRANTY LIMITATION: CORPORATION DOES NOT WARRANT AND USER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THEISPOT BY USER WILL BE UNINTERRUPTED OR ERROR FREE. USER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND THEISPOT.COM SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THEISPOT.
Section 4.03 -- Inaccuracies: User hereby acknowledges that theispot.com may contain errors, inaccuracies and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of theispot.com.
SECTION 4.04 -- LIMITATION OF LIABILITY: CORPORATION SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE THEISPOT; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY USER; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THEISPOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 4.05 -- LIMITATION OF DAMAGES: THE SOLE REMEDY OF USER FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE THEISPOT, AND PRODUCTS AND SERVICES OFFERED THROUGH THE THEISPOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE THEISPOT, AS DETERMINED BY CORPORATION.
Section 4.06 -- Indemnification: User shall release, defend, indemnify and hold harmless Corporation (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by User of the Internet, theispot.com or products or services offered through theispot (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the theispot; (iii) User's negligence or any tortious acts (or failures to act) of User; (iv) products or services offered through the theispot; and (v) any breach by User of the obligations of User under this Agreement.
Section 4.07 -- Links: User hereby acknowledges that the theispot may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to User and do not constitute an endorsement by Corporation of such Web Sites and the third party content therein.
ARTICLE V: MISCELLANEOUS
Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between Corporation and User relating to the subject matter hereof.
Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by Corporation and modifications made to this Agreement by Corporation, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Corporation
Section 5.03 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 5.04 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 5.05 -- Governing Law: This Agreement shall be governed by the laws of the state, New York, NY, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be [Venue].
Section 5.06 -- User Notice: All notices to User shall be in writing. Notices to User shall be deemed delivered when posted conspicuously on the theispot or when delivered to User electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to User shall be deemed given when dispatched. Notices posted conspicuously on the theispot.com or delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 5.07 -- Corporation Notice: All notices to Corporation shall be in writing. Notices to Corporation shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for Corporation. Notices to Corporation shall be deemed given on the date notice is received by Corporation (as evidenced in the case of Certified or Registered Mail by Return Receipt).
420 Lexington Ave. ste. 3100 New York, NY 10170
Section 5.08 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require
Section 5.09 -- Remedies: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Corporation. In addition to remedies at law and other rights which may be available, Corporation shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by User.
Section 5.10 -- Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 5.11 -- Survival: The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Password.
Section 5.12 -- Public Announcements: All public announcements concerning the theispot or the relationship of User and Corporation shall be subject to the prior written approval of Corporation
Section 5.13 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the World Intellectual Property Organization inNew York, NY. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the World Intellectual Property Organization. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by the World Intellectual Property Organization.
Section 5.14 -- Litigation Expense: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).