IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 13 BELOW
d. ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW (SECTION 13), YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
3. Registration. To sign up for the Services, we may require you to register for an Account on the Services (an “Account”) or log in via Facebook Connect, Twitter or another authentication mechanism (a “Third Party Account”). You must provide accurate and complete information and keep your Account information updated. If you provide any information that is inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Company may deny you access to areas requiring registration and/or terminate your Account, at its sole discretion.
You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password and login credentials secure. You may never use another person’s user Account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the
Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
You may establish, maintain, use and control only one Account on the Service. Each Account on the Service may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not “co-own” accounts on the Service. In the event Company determines that you have opened, maintained, used or controlled more than one Account, in addition to any other rights that Company may have, Company reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any Prizes.
b. User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You retain ownership of any and all User Content created and/or uploaded by you. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
c. Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
e. License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, manipulate, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the App, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the App or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. For the sake of clarity, to the extent any User Content you submit includes your name, likeness, voice, video, or photograph, you acknowledge and agree that the foregoing license of this Section 4(e) shall apply to the same. You also hereby do and shall grant each user of the App and/or the Services a non-exclusive, perpetual license to access your User Content through the App and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, the foregoing license granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
5. Rules of Conduct.
b. By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty, including but not limited to, facilitating the rebroadcast of the Kitchen Clout Services (see our DMCA Copyright Policy in Section 16 below);
ii. uses the Services for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;
iii. uses screen reader technology, algorithms, or any other automated technological means to interpret, analyze, research, or gain information to advance in the game;
iv. you know is false, misleading, untruthful or inaccurate, including, but not limited to, providing inaccurate contact or Account information;
v. illicitly manufactures Extra Lives or other benefits by providing inaccurate information, buying or selling such benefits, creating multiple accounts, or other means;
vi. results in the creation or operation of multiple user accounts;
vii. creates multiple accounts;
viii. logs an Account into multiple devices simultaneously;
ix. logs an Account into more than five different devices over the course of the history of the Account;
x. logs multiple Accounts into a single device over the course of the history of any of the Accounts;
xi. results in the sale or transfer of your Account;
xii. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, otherwise violates any law or right of any third party, or is otherwise inappropriate as determined by us in our sole discretion;
xiii. constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”);
xiv. contains software viruses or any other computer codes, files, content, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
xv. is designed or intended to obtain password, Account, or private information from any Kitchen Clout user;
xvi. impersonates any person or entity, including any of our employees, representatives, or users;
xvii. promotes or links to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content; or
xviii. includes anyone’s identification documents or sensitive financial information.
c. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the App without our express written permission; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
d. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
f. If for any reason the Service is not running as originally planned (e.g., if it becomes corrupted or does not allow the proper usage and processing of entries in accordance with the rules, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Company corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service), Company reserves the right, in its sole discretion, to disqualify any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Service, and select the winner(s) from all eligible entries. If such cancellation, termination, modification or suspension occurs, notification may be posted on the Site.
6. Third-Party Services. The Services may permit you to link to or otherwise access other websites, services or resources on your device and the Internet, and other websites, services or resources may contain links to or be accessed by the Services or the App. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link or access does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
7. Location-Based Services. We may offer features that are based on the location of users and which may report on the locations of those users as they use the Services (the “Location-Based Services”). You may partake in using these Location-Based Services solely at your own discretion and may opt out of providing such information by turning off those features. Should you use Location-Based Services, you are consenting to our collection and dissemination of your location information through the Services. Under no circumstances shall we be liable for claims or damages therefrom arising out of your informed decision to disseminate your location information through the Service.
8. In-App Purchases. Through the Applications, you may purchase (“In-App Purchase”) certain goods designed to enhance the performance of the Services (“Goods”). When you purchase Goods, you are doing so through either Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions. (http://www.apple.com/legal/internet-services/itunes/us/terms.html; http://play.google.com/intl/en_us/about/play-terms.html). We are not a party to any In-App Purchase.
10. Warranty Disclaimer.
a. We have no special relationship with you or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
i. which users gain access to the Services;
ii. what Content you access via the Services; or
iii. how you may interpret or use the Content.
b. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
c. The views and opinions of our hosts are their own and not necessarily representative of the views and opinions of the Company or its employees, and the Company assumes no responsibility for the Content, accuracy, or views of or opinions expressed by such hosts.
d. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
12. Limitation of Liability. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES.
13. ARBITRATION CLAUSE & CLASS ACTION WAIVER–IMPORTANT–PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
13.1. Binding Arbitration
a. Either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by the JAMS in accordance with the provisions of its Streamlined Arbitration Rules & Procedures, excluding any rules or procedures governing or permitting class actions.
b. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
c. The Commercial Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
a. If you are a resident of the United States and Canada, arbitration will take place in Atlanta, Georgia. You and Company agree to submit to the personal jurisdiction of any federal or state court in Orleans Parish, New Orleans, Louisiana, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
13.3 Class Action Waiver
a. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
13.4 Exception–Litigation of Intellectual Property and Small Claims Court Claims
a. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court in St. Tammany Parish, Louisiana to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
13.5 30-Day Right to Opt Out
a. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to the following address: Tymedia Productions, LLC. 840 Oak Harbor Blvd, Slidell, Louisiana 70458. The notice must be sent within 30 days of 03/01/2019 or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Company also will not be bound by them.
13.6 Changes to this Section
a. Company will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
b. For any dispute not subject to arbitration you and Company agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in St. Tammany Parish, Louisiana. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
c. The Terms and the relationship between you and Company shall be governed by the laws of the State of Louisiana without regard to conflict of law provisions.
16. DMCA Copyright Policy.
a. The Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
b. Procedure for Reporting Copyright Infringement. If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, email address;
5. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
c. Please contact the Designated Agent to Receive Notification of Claimed Infringement for the Company at [email protected] or at:
Tymedia Productions, LLC
840 Oak Harbor Blvd.
Slidell, Louisiana 70458
17. Apple Device and Application Terms. In the event you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (in either case, an “Application”), the following shall apply:
c. You will only use the Application in connection with an Apple device that you own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
e. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
f. You acknowledge and agree that the Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
g. You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, the Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
i. Both you and the Company acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of Agreement which may affect or be affected by such use; and
j. Both you and the Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these terms, and that upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as the third-party beneficiary hereof.
b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
h. Relationships. The App is not sponsored, endorsed, administered by, or associated with Apple or its subsidiaries or affiliates.
Contact. You may contact us at the following address:
Tymedia Productions, LLC., 840 Oak Harbor Blvd, Slidell, Louisiana, 70458.