LAST UPDATED: January 31, 2017
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND A WAIVER OF CLASS ACTION CLAUSE. PLEASE REFER TO SECTION 19 OF THESE TERMS.
This Agreement is between you and News America Marketing Interactive, LLC ("NAM," "we" or "us") concerning your access and/or use of the SmartSource Services. The "Services" may include, without limitation: (a) websites, mobile sites, social media pages, software applications ("apps") and widgets, (b) all software that comprises the Services or that is made available through any of the Services (together with any associated updates, enhancements or upgrades, the "Software", and (c) all data, text, images, photographs, graphics, audio, video, offers, promotions, coupons, and documents including, without limitation, marketing materials, press releases, and other information and content available or submitted on or through the Services ("Content").
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Acceptance of Agreement. By accessing or using the Services, you agree to be bound by the terms of this Agreement and to comply with the terms and conditions associated with any Content available through the Services. If you print coupons using any of our print technologies through the Services, you agree not to interfere with or circumvent our technologies and you agree to comply with print limits and only print coupons for your own personal and non-commercial use. We reserve the right to suspend or disable your printing ability in the event of suspicious activity or violation of this Agreement or the terms associated with any Content or any other applicable terms and conditions. If you do not agree to the terms of this Agreement, do not use the Services. We may revise this Agreement from time to time in our sole discretion and provide you with notice of such change by any reasonable means, including by making available the revised version of this Agreement through the Services. Any modifications will be effective 30 days after making the revised Agreement available. You should periodically visit this page to review the then-current version of the Agreement. The "LAST UPDATED" legend at the top of this page indicates when this Agreement was last revised. Notwithstanding the foregoing, any amendment to this Agreement shall not apply to any dispute between you and us arising prior to the effective date of such amendment. Your access to or use of the Services following any changes will signify your acceptance of such changes and your agreement to be bound by them.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Services; charge fees in connection with the Services; modify and/or waive any fees charged in connection with the Services; and/or make available opportunities to some or all users of the Services. You agree that neither we nor any of our affiliates shall be liable to you or to any other person for any modification, suspension or discontinuance of the Services or any component thereof.
2. Intended Audience. The Services are controlled and/or operated from the United States and are not intended to subject NAM to non-US jurisdiction or laws. Unless otherwise specified, materials made available through the Services are presented solely for the purpose of providing services and promoting products available in the U.S. We make no, and hereby disclaim any, representations or warranties that the Services, in whole or in part, or any products, services or materials made available through the Services, are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk and are responsible for compliance with all applicable local laws, rules and regulations. We may limit the availability of the Services, in whole or in part, to any person(s), geographic area(s) or jurisdiction(s) we choose, at any time and in our sole discretion. You represent and warrant that (i) you are not located in a country that is subject to a government embargo, or that has been designated by a government as a "terrorist supporting" country; and (ii) you are not listed on any government list of prohibited or restricted parties.
3. Information Submitted Through the Services/Feedback Your submission of information through the Services is governed by our Privacy Notice, which is located here. You agree that all information that you provide to us is true, accurate and complete and that you will maintain and update such information as necessary. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable suspicion that such information is untrue, inaccurate, not current or incomplete, or you otherwise have violated this Agreement, we have the right to suspend or terminate your account and refuse any or all current or future use of the Services (or any portion thereof).
All comments or materials submitted by you to NAM through the Services, including without limitation, feedback, testimonials, images, reviews, questions, comments, ideas, or suggestions (collectively, "Feedback") shall be received and treated by us on a non-confidential and unrestricted basis. Further, we shall be free to use, copy, display, perform, distribute, adapt, and promote, in any medium now known or later developed, without compensation to you, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and/or services incorporating such Feedback. You agree that in submitting Feedback, it will not violate this Agreement or any right of any third party, including without limitation, any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. You further agree that no Feedback you submit will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of "spam". We may, in our sole discretion, remove any Feedback you submit to through Services that in our opinion breaches this Agreement or any applicable law, or is otherwise objectionable.IF YOU SUBMIT ANY INFORMATION TO A SOCIAL NETWORK PROVIDER OR OTHER THIRD PARTY THROUGH THE SERVICES, YOU ACKNOWLEDGE THAT SUCH THIRD PARTY IS COLLECTING SUCH INFORMATION AND THAT SUCH SUBMISSION MAY BE SUBJECT TO THIRD-PARTY TERMS AND CONDITIONS AND PRIVACY POLICIES.
4. Rules of Conduct. You agree to comply with all applicable laws, rules and regulations in connection with your access and use of the Services and any related technology. In addition, we expect users of the Services to respect the rights and dignity of others. Your access to and use of the Services are conditioned upon your compliance with the rules of conduct set forth in this Section 4 and as otherwise set forth in these terms and condition, and your failure to comply may result in termination of your access to or use of the Services (or any part thereof) pursuant to Section 18 below. You agree that you will not:
Post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment or any part of the Services.
Post, transmit or otherwise make available through or in connection with the Services any information or materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory or libelous; (c) fraudulent or tortious; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right without the express written consent of the owner of such right.
Use the Services (including but not limited to Content) for any fraudulent, unlawful or unintended purpose.
Harvest or collect email addresses, or other personally identifiable information about users of the Services.
Interfere with or disrupt the operation of the Services or the servers or networks used to make the Services available or violate any requirement, procedure, policy or regulation of such servers or networks.
Interfere with or disrupt the operation of any computer system used in connection with the Services.
Restrict or inhibit any other person from using the Services (including by hacking or defacing any portion of the Services).
Reproduce, duplicate, copy, modify, adapt, translate, sell, resell or otherwise exploit for any commercial purpose any portion of (or any access to or use of) the Services (including but not limited to Content), including but not limited to using any software to suppress or alter the display of advertising through the Services, without our express prior written consent.
Reverse engineer, decompile or disassemble any portion of the Services, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Services or materials originating from the Services.
Frame or mirror any portion of the Services without our express prior written consent.
Systematically download and store Services content.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather Services content or reproduce or circumvent the navigational structure or presentation of the Services, without our express prior written consent. Notwithstanding the foregoing, and subject to the following sentence, NAM grants the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. NAM reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
Use any Content other than in accordance with this Agreement and any other terms and conditions applicable to such Content.
Act in any manner that is in contravention of applicable laws. You also acknowledge and agree that solely you are responsible for obtaining and maintaining all telecommunications, networking and computer hardware, equipment and services needed to access and use the Services and paying all related charges.
5. Registration; User Names and Passwords. You may be required to register to use all or part of the Services. We may reject, or require that you change, any user name, password or other information that you provide to us. Your user name and password are for your personal use only and should be kept confidential. You are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or Services account. You agree not to transfer your user name or password, or lend or otherwise transfer your use of or access to the Services, to any third party, and you agree not to create more than one personal account. You agree that we will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be held liable for losses incurred by us or another due to someone else using your account or password. You may not use anyone else's account at any time.
6. Content. All Content, including without limitation, any descriptions and images of, and references to, third-party products or services available in connection with the Services, advice, recommendation or opinion, offer, promotion or coupon, grocery or other product, service, retailer, recipe, drug, and health information is provided on or through the Services for informational purposes only, and should not be construed to indicate that any such Content is endorsed by us, nor is there any representation or warranty by us that the Content is reliable, accurate, timely, complete, effective, or safe for your use. All Content, including without limitation, any descriptions, images, references, features, content, specifications, products and prices of products and services and values of any coupon or promotion featured through the Services are subject to change at any time without notice. NAM shall have no liability in the event a product or value of any coupon or promotion is listed at an incorrect amount due to a typographical error, error in information received from our suppliers or other error. We reserve the right, with or without prior notice, to limit the availability of or to discontinue any Services or products; to impose or enforce conditions on the use of any coupon or other promotion; to bar any user from making a purchase(s); and/or to refuse to provide any user with any product or service or to limit the quantity of product(s) available to him or her.
YOU ACKNOWLEDGE THAT RELIANCE ON ANY INFORMATION WITHIN THE CONTENT OR PROVIDED ON OR THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK AND YOUR USE OF CONTENT IS SUBJECT TO THIS AGREEMENT AND ANY THIRD PARTY TERMS AND CONDITIONS APPLICABLE TO SUCH CONTENT.
7. Forums. We may make available through the Services certain services (for example, message boards, forums, blogs and chat, messaging and comment functionality) to which you are able to post information and materials (each, a "Forum"). Information contained in Forums may be provided by our employees as well as by third-party visitors. Visitors may make statements that are inaccurate, misleading or deceptive. We neither endorse nor are responsible for any information, statements or materials provided by third parties in the Forums. Under no circumstances will NAM be liable for any loss or damage caused by these statements, including without limitation, your reliance on such information, statement or materials. The opinions expressed in the Forums reflect solely the opinions of the individuals who submitted them and may not reflect the opinions of NAM. In addition, NAM has no control over, and shall have no liability for, any damages resulting from the use (including republication) or misuse by any third party of information voluntarily made public through a Forum or any other part of the Services. IF YOU CHOOSE TO MAKE YOUR PERSONAL OR OTHER INFORMATION PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON THE SERVICES, YOU DO SO AT YOUR OWN RISK.
8. User Submissions. The Services may make available certain functionality (such as Forums) through which you are able to post or send content, information and materials (each, a "Submission"). You retain any ownership rights that you may have in any Submission that you post, subject to the terms and conditions of this Agreement. For each Submission that you make available through or in connection with the Services, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, in whole or part, and for any purpose (including without limitation, in connection with the Services and our business, marketing or promotional purposes, and/or for syndicating Submissions, promoting or redistributing part or all of the Services (and derivative works thereof) in any website, online application, mobile application, social media channel, or other medium now known or later developed), and you hereby represent and warrant that you have all necessary rights (including all necessary waivers of moral rights) to grant the foregoing license. You also hereby grant us a perpetual, nonexclusive, royalty-free, transferable, sublicenseable, irrevocable worldwide right and license to use your name, likeness, photograph, image, voice, and statements in connection with your Submissions and any derivative works thereof. To the extent permitted by law, you hereby waive any moral rights you may have in or to your Submissions.
If you choose to post Submissions, please be aware that your Submissions and your public account profile (e.g., your name and any other information or content submitted through the registration process) will be available to the public. If you register with us via a third party account such as Facebook, Google+, or Twitter, your NAM profile may link to your public profile at that account as well. You should therefore only post Submissions you are comfortable sharing under this Agreement. You are solely responsible for your Submissions and the consequences of posting your Submissions to the Services. You represent and warrant that you own or have the necessary licenses, rights, consents, permissions, and releases to publish or perform Submissions you post and to grant us the licenses and rights set forth in this Agreement.
We may use Submissions to promote or advertise the Services or the products and services of affiliates, advertisers and other third parties (collectively "Promotions"). By posting Submissions, you agree that we shall have the perpetual, nonexclusive, royalty-free, transferable, sublicenseable, irrevocable worldwide right and license to use your name, likeness, photograph, image, voice, and statements in connection with such Promotions. You agree that you are not entitled to any compensation if your Submissions, including without limitation, your name, likeness, photograph or image is adjacent to or included with advertisements, promotions, coupons, offers or other information, or otherwise used to promote our products and services or any other company or product that is addressed in your Submissions.
You agree not to post any Submissions that:
violates a third party's copyrights, trade secrets, trademarks, privacy rights, publicity rights, or other intellectual or proprietary rights;
you do not have the right to disclose under any law, contractual obligation, or fiduciary relationship;
violates, or encourages conduct that violates, laws or regulations;
is fraudulent, false, misleading, or deceptive;
is sexually explicit, pornographic, obscene, defamatory, libelous, threatening, harassing, hateful, discriminatory, racially or ethnically offensive, abusive, violent, humiliating to or bullying of other people, or otherwise inappropriate, as deemed by us in our sole discretion;
may create a risk of harm, loss, emotional distress, or physical or mental injury to yourself, any other person, or any animal;
is harmful to or exploitive of children, or that includes images or videos of children without first obtaining the consent of their parent or guardian;
contains advertisements or solicitation of business;
sends spam, surveys, unsolicited advertising or promotional materials, or chain letters;
contains or links to any material that contains software viruses, corrupted files or any other similar software, files, or programs that may damage or adversely affect the operation of the Site, the Services, or the computer or systems of another user;
impersonates another person or entity.
We reserve the right but not the obligation to remove any Submissions and/or to terminate, deactivate or suspend a user account without notice for any reason or no reason, including without limitation our belief that Submissions violates this Agreement.
9. Monitoring. We may (but have no obligation to) monitor, evaluate or alter Submissions before or after they appear on the Services. We may disclose any Submission and the circumstances surrounding its transmission to anyone for any reason.
10. Software License Grant; Restrictions on Use. The Software (as defined in Section 1, above) is licensed, not sold, to end users. Subject to the terms and conditions of this Agreement, we hereby agree to permit you, on a non-exclusive, revocable, non-transferable, non-sublicensable, limited basis, to install and/or use the Software on a single device that you own or control (the " Device"), provided that your installation and/or use of the Software are solely (a) for your own personal use; and (b) in accordance with the restrictions and limitations set forth in this Agreement. If you fail to comply with any of the terms or conditions of this Agreement, this Agreement (including the grant of permission to use the Software hereunder) will automatically terminate, whereupon you will immediately (y) cease using the Software; and (z) remove (i.e., uninstall and delete) the Software from your Device.
Without limiting the generality of the foregoing paragraph, you shall not (i) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer the Software or any portion thereof, including its content (including as a standalone product or in conjunction with other products); (ii) make copies of the Software or any portion thereof, including its content (except as necessary to install and use the Software in accordance with this Agreement); (iii) reverse engineer, decompile or disassemble any portion of the Software; (iv) create derivative works of or from the Software or any portion thereof, including its content; (v) incorporate the Software or any portion thereof, including its content, into any product or service; (vi) use the Software or any portion thereof, including its content, for commercial purposes; and (vii) remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in the Software. All rights not expressly granted to you hereunder are reserved to us and our licensors.
11. New Software Versions. We may, in our sole discretion, add features or functions or provide bug fixes, patches, updates and upgrades to the Software, which may be provided automatically. If you do not want to receive such upgrades automatically, do not use the Software.
12. NAM's Proprietary Rights. We, our affiliates and/or our licensors and suppliers own the Services including but not limited to the Content, information and materials made available through the Services. The Services and such Content, information and materials are protected by copyright, trademark, patent and/or other proprietary rights and laws. Except as expressly authorized in advance by us or expressly permitted by the terms of this Agreement, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on all or any part of the Services or any Content, information or materials made available through the Services.
Our trade names, trademarks and service marks include, without limitation, SMARTSOURCE, SMARTSOURCE.CA, SMARTSOURCE.COM, NEWS AMERICA MARKETING, NEWS AMERICA.COM, UTILISOURCE, UTILISOURCE.COM and any associated logos. All trademarks and service marks on the Services not owned by us are the property of their respective owners. You may not use our trade names, trademarks or service marks in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained herein or on the Services should be construed as granting any license or right to use any trade names, trademarks or service marks without the express prior written consent of the owner.
UNAUTHORIZED USE OF THE SERVICES (INCLUDING ANY SOFTWARE) MAY SUBJECT YOU TO MONETARY DAMAGES AND OTHER CIVIL AND CRIMINAL PENALTIES, INCLUDING FOR COPYRIGHT INFRINGEMENT.
14. Promotions. Any sweepstakes, contests, raffles, surveys, games or similar promotions made available through the Services may be governed by rules that are separate from this Agreement. If the rules for a promotion conflict with this Agreement, the promotion rules will govern.
15. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL PRODUCTS, SERVICES, CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE," WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, AND NAM DISCLAIMS ALL STATUTORY AND IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE SERVICES AND ALL PRODUCTS, SERVICES, CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF THE PRODUCT.
NAM MAKES NO REPRESENTATION, WARRANTY OR CONDITION THAT THE SERVICES OR ANY PRODUCTS, SERVICES, CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES WILL BE ACCURATE, RELIABLE, COMPLETE, ERROR FREE, COMPATIBLE OR INTEROPERABLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. WITHOUT LIMITING THE FOREGOING, NAM MAKES NO REPRESENTATION OR WARRANTY (A) THAT THE SERVICES WILL BE AVAILABLE ON A TIMELY BASIS OR THAT ACCESS TO THEM WILL BE UNINTERRUPTED OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT THE SERVICES OR THE HARDWARE, SERVERS OR NETWORKS THROUGH WHICH THEY ARE MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NAM SHALL HAVE NO OBLIGATION TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE SERVICES. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, YOUR USE OF THE SERVICES.
Applicable law may not allow for limitations of certain implied warranties. Solely to the extent that such law applies to you, some or all of the above limitations or disclaimers may not apply to you, and you may have additional rights.
16. LIMITATION OF LIABILITY. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NAM, ITS AFFILIATES, THEIR SUCCESSORS AND ASSIGNS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVICERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM THE USE OF THE SERVICES OR FROM THESE TERMS, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclsuions and limitations described in these Terms may not apply to you. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE EXCEED THE LOWER OF THE TOTAL DOLLAR AMOUNT, IF ANY, PAID BY YOU TO NAM FOR USE OF THE SERVICES FOR THE PAST 12 MONTHS AND $100.
17. Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless the NAM Entities from and against any and all allegations, claims, actions, demands, causes of action, losses, costs and expenses (including attorneys' fees and court costs) ("Claims") arising out of (a) your use of, inability to use, or activities in connection with, the Services; (b) any violation or alleged violation of this Agreement or violation of any applicable law by you; or (c) any claim that any of your Submissions or Feedback or any use or exploitation thereof caused damage to or infringed upon or violated the rights of a third party, including past, present or future infringement, misappropriation, libel, defamation, invasion of privacy or right of publicity, or violation of any right related to the foregoing. Without limiting the foregoing, each of the NAM Entities reserves the right to assume, at its sole expense, the exclusive defense and control of any Claim and all negotiations for settlement or compromise, and you agree to fully cooperate with such NAM entity in the defense of any such claim, action, settlement or compromise negotiations, as requested by it. In no event will you settle any claim or action without the applicable NAM entity's prior written approval.
18. Termination; Enforcement. This Agreement is effective until terminated. You agree that we, at our sole discretion, may suspend, restrict or terminate your access to or use of the Services, your user name and password and/or any files or information associated with your user name, at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement, subject to any restrictions placed on our exercise of such rights under applicable law. Upon any such termination, your right to use the Services will immediately cease. You agree that any suspension, restriction or termination of your access to or use of the Services may be effected without prior notice and that we may immediately deactivate or delete any user name and/or password used by or provided to you and all related information and files associated therewith and/or bar any further access to such information or files. You agree that the NAM Entities shall not be liable to you or any third party for any suspension, restriction or termination of your access to the Services or to any such information or files and shall not be required to make such information or files available to you after any such termination, suspension or restriction. We reserve the right to take steps we believe are necessary or appropriate to enforce and/or verify compliance with this Agreement. Sections 1-3, 6-9, 11-13, 15-23 23 shall survive any expiration or termination of this Agreement.
19. Dispute Resolution and Arbitration. The Services (excluding Third-Party Sites) are controlled by NAM. While NAM has made no effort to publish the Services other than in the United States, the Site is accessible elsewhere.
You and NAM both benefit from establishing a predictable legal environment in regard to the Services. Therefore, you and NAM explicitly agree that all disputes, claims or other matters arising from or relating to your use of the Services will be governed by the laws of the State of New York and the federal laws of United States applicable therein.
You and NAM also agree that NAM's affiliates are third-party beneficiaries of this Section 19 and that, solely for purposes of this Section 19, "we", "us", and our include both NAM and NAM's affiliates.
We expect that our customer service team will be able to resolve most issues you may have using the Services. In the unlikely event that an issue remains unresolved, we prefer to specify now what each of us should expect in order to avoid any confusion later. Accordingly, you and we agree to the following resolution process.
In an attempt to find the quickest and most efficient resolution of our issues, you and we agree to first discuss any issue informally for at least 30 days, except that claims based on infringement or misuses of intellectual property and/or misappropriation of trade secrets may be brought without any advance discussion as further provided below. To do that, please send your full name, your email and/or mailing address, your concern, and your proposed solution by certified mail to us at: News America Marketing, Legal Department, 1211 Avenue of the Americas, New York, NY 10036; Attn: Legal Department. If we would like to discuss an issue with you, we will contact you using an email or mailing address we have on file for you.
IF WE DO NOT REACH AN AGREED UPON SOLUTION AFTER OUR DISCUSSIONS FOR AT LEAST 30 DAYS, YOU AND WE AGREE THAT ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, OR THE RELATIONSHIP WHICH RESULTS FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PERFORMANCE, BREACH, ENFORCEMENT, EXISTENCE OR VALIDITY OF THE MATTERS PROVIDED FOR IN THIS AGREEMENT OR YOUR USE OF THE SERVICES, OUR RELATIONSHIP WITH EACH OTHER, THE AGREEMENT TO ARBITRATE OR THE SCOPE OF THIS ARBITRATION AGREEMENT (A "CLAIM"), MUST BE RESOLVED THROUGH PRIVATE AND CONFIDENTIAL BINDING INDIVIDUAL ARBITRATION BEFORE JAMS, PURSUANT TO JAMS' STREAMLINED ARBITRATION RULES AND PROCEDURES LOCATED AT WWW.JAMS.ADR.COM. ALL CLAIMS WILL BE ARBITRATED BEFORE A SINGLE ARBITRATOR ON AN INDIVIDUAL BASIS, AND WILL NOT BE CONSOLIDATED OR JOINED IN ANY ARBITRATION WITH ANY CLAIM OF ANY OTHER PARTY. AS AN EXCEPTION TO THIS ARBITRATION AGREEMENT, EITHER YOU OR WE MAY PURSUE IN SMALL CLAIMS COURT ANY CLAIM THAT IS WITHIN THAT COURT'S JURISDICTION AS LONG AS YOU PROCEED ONLY ON AN INDIVIDUAL BASIS, AND YOU OR WE MAY AT ANY TIME BRING SUIT IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK, COUNTY OF NEW YORK AGAINST THE OTHER PARTY IN RELATION TO CLAIMS BASED ON INFRINGEMENT OR MISUSE OF INTELLECTUAL PROPERTY AND/OR MISAPPROPRIATION OF TRADE SECRETS AND YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY.
NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE ANY PARTY FROM SEEKING INJUNCTIVE RELIEF IN ORDER TO PROTECT ITS RIGHTS PENDING AN OUTCOME IN ARBITRATION. INJUNCTIVE RELIEF MAY BE SOUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, COUNTY OF NEW YORK.
YOU AND WE ALSO AGREE TO ARBITRATE IN EACH OF YOUR AND OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND YOU AND WE EXPRESSLY WAIVE ANY RIGHT COMMENCE OR PARTICIPATE IN ANY CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS AND, WHERE APPLICABLE, YOU AND WE ALSO AGREE TO OPT OUT OF ANY SUCH CLASS PROCEEDING.
If your claim is for $10,000 or less, we agree that the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, unless you request a telephonic or in-person hearing. The arbitration hearings for U.S. residents will be held in New York, New York. If this location is not convenient for you, please let us know and we will work to determine a mutually convenient location. If we cannot agree on such a location, the arbitrator will determine the location of the hearing.
For U.S. residents, regardless of who initiates the arbitration, we will reimburse you for your share of arbitration fees (not including your attorneys' fees) up to a maximum of $2,500.
If the arbitrator rules against us, in addition to accepting whatever responsibility is ordered by the arbitrator, we will reimburse your reasonable attorneys' fees and costs up to a maximum of $5,000, regardless of who initiated the arbitration. In addition, if the arbitrator rules in our favor, we will not seek reimbursement of our attorney's fees and costs, regardless of who initiated the arbitration unless the arbitrator finds some or all of your claims to be frivolous or to have been brought in bad faith.
You and we agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged, the proceedings, the arbitrator's decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, the enforcement of an award, or unless otherwise required by law or court order.
IT IS IMPORTANT THAT YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING ANY RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AGAINST NAM FOR CLAIMS THAT ARE COVERED BY THIS AGREEMENT TO ARBITRATE. THE ARBITRATOR'S DECISION WILL BE CONCLUSIVE AND BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
20. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information on providers of such protections is available on GetNetWise (http://www.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). We do not endorse any of the products or services listed at such sites.
21. Information or Complaints. If you have a question or complaint regarding the Services or this Agreement, please contact us by writing to News America Marketing Interactive, LLC, 1185 Avenue of Americas, New York, NY 10036.
22. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you (or your agent) may send us a notice pursuant to the DMCA by providing us with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;
information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
Upon receipt of a notice that meets statutory requirements, we will contact the alleged infringer, if known, and remove or disable access to the material that is alleged to be infringing if hosted on the Services. If we receive more than one notice of copyright infringement regarding a user, we may, in our sole discretion, deem the user to be a repeat copyright infringer and we may terminate the user's access to the Services or parts thereof.
DMCA notices and counter-notices should be sent to News America, Legal Department, 1211 Avenue of the Americas, New York, NY 10036, Attention: Copyright Agent, fax: (212) 852-7214, email: email@example.com.
We suggest that you consult your legal advisor before submitting a notice or counter-notice.
23. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee or agency relationship between you and us. If any provision of this Agreement is found to be unlawful, void or unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. Any such attempted assignment, transfer or sublicense shall be void. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only for convenience and in no way defines or explains any section or provision hereof. The term "including" as used herein means "including without limitation." This Agreement hereby incorporates by this reference any additional terms that we post on the Services, and, except as otherwise expressly stated herein, this Agreement is the entire agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you may be made via posting to the Services, by e-mail or by regular mail, in our discretion. Without limitation, you agree that a printed version of this Agreement and of any notice given hereunder in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We will not be responsible for failures to fulfill any of our obligations due to causes beyond our control.
24. Apple-Specific Terms and Conditions. In addition to your agreement with the foregoing terms and conditions, you acknowledge and agree to the following provisions with respect to your use of the version of any Services app that is compatible with the iOS operating system of Apple Inc. ("Apple"). Apple is not a party to this Agreement and does not own and is not responsible for the app. Apple is not providing any warranty for the app, except, if applicable, to refund its purchase price. Apple is not responsible for maintenance or other support services for the app and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the app, including, without limitation, any third party product liability claims, claims that the app fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the app, including those pertaining to intellectual property rights, must be directed to NAM at the contact information provided in Section 21 of this Agreement. The license you have been granted herein is limited to a non-transferable license to use the app on any Apple-branded product which runs Apple's iOS operating system and is owned or controlled by you, as permitted by the Usage Rules set forth in Apple's App Store Terms of Service. In addition, you agree to comply with the terms of any third party agreement that is applicable to you when using the app, such as your wireless data service agreement. You hereby represent and warrant (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
© News America Marketing Interactive, LLC. All rights reserved.