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SECTION 1 – License
This Agreement provides you with a limited, non-exclusive, non-transferable, and non sublicenseable license to use the Site solely for your personal use.
The foregoing license is limited. You therefore may not (1) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Site (or any part thereof) in any manner not expressly permitted by this Agreement, (2) reverse engineer, decompile, disassemble, translate, or create any derivative work of the Site (or any part thereof); (3) access, link to, or use any source code from the Site (or any part thereof); or (4) erase or remove any proprietary or intellectual property notice contained in or on the Site (or any part thereof). In addition, you acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.
SECTION 2 – Use of Material from the Site
Subject to The Company’s right to monitor or audit compliance, you acknowledge that it is solely your responsibility to maintain your compliance with the terms and conditions of this Agreement. By accessing or using the Site, you also agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to your use of the Site. In addition, you agree to assume all responsibility for your use, and the results of your use, of the Site, including meeting any requirements of your contracts with third parties or other persons.
We maintain the Site for your non-commercial personal use. Your use of the Site for any other purpose is permissible only with our prior written consent. Without limiting the foregoing, you agree not to: (1) use the Site in a commercial manner, including by distributing, transmitting or publishing the Site or any of its content; (2) interfere with others’ use of the Site; (3) forge
headers, impersonate another person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to The Company on or through the Site; (4) impair the Site’s operation or interfere with or disrupt the servers or networks connected to it; (5) interfere with our intellectual property rights; (6) frame or otherwise co-brand the Site or any of its content; (7) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (8) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (9) upload, post, email or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or network; (10) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (11) use the Site for any illegal purpose; (12) use any “deep link,” “page scrape,” “robot,” “spider,” or any other device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Site or in any way reproduce or circumvent the navigational structure or presentation of the Site in order to obtain or attempt to obtain any materials, pictures, documents, or any other information through any means not purposely made available through the Site; (13) attempt to gain unauthorized access to (a) any portion or feature of the Site, (b) any other systems or networks connected to the Site, (c) any Company server, or (d) to any of the services offered on or through the Site, by hacking, password “mining,” or any other illegitimate or prohibited means; (14) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Site; (15) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or the Company’s systems or networks or any systems or networks connected to the Site; (16) use the Site to harvest or collect email addresses or other contact information; or (17) use the Site in a manner that could damage, disparage, or otherwise negatively impact the Company. You further represent that the Company has the right to rely upon all information provided to the Company by you, and the Company may contact you by email, telephone or postal mail for any purpose, including but not limited to (1) follow-up calls, (2) customer satisfaction surveys, and (3) inquiries about any orders you placed, or considered placing, at or through the Site. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
SECTION 3 – Privacy
SECTION 4 – Proprietary Rights
The contents of the Site, including all software, design, text, graphics, images, photographs, illustrations, audio and video material, artwork, databases, user interfaces, visual interfaces, sounds, artwork, presentations in any format, computer code (including html code), products, information, and documentation, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the Site (collectively, “Material”) unless otherwise indicated, are owned, controlled, and licensed by Throw It! or its licensors. Any rights granted hereby are expressly licensed. The Company does not grant any implied right to you or any other person and does not transfer or assign any ownership or intellectual property interest or title in or to the Site (or any part thereof) to you or anyone else. Accordingly, your unauthorized use of the Site (including any Material) may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. The Site and Material are the property of the Company and/or its licensors. You must not alter, delete or conceal any copyright or other notices contained on the Site or Material, including notices on any audio/visual material you access, download, transmit, display, print or reproduce from the Site. You shall not, nor will you allow any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Material without the express prior written consent of the Company or its owner if the Company is not the owner. The Company and all other names, logos, and icons identifying the Company and its products and services are proprietary trademarks of the Company (or its affiliates), and any use of such marks, including, without limitation, as domain names or account identifiers, without the express written permission of the Company, is strictly prohibited. Other product and company names mentioned herein or on the Site may be the trademarks and/or service marks of their respective owners.
SECTION 5 – Representations and Warranties
You represent to the Company that (1) you are at least the legal age of majority; (2) you are authorized to enter into this Agreement; (3) you will not use the Site or the Materials for any purpose or in any manner that violates any law or regulation or that infringes the rights of the Company or any third party; (4) any information or data provided to the Company by you will not violate any law or regulation or infringe the rights of the Company or any third party; (5) all information that you provide to us in connection with the Site (e.g., name, email address, and/or other information) is true and accurate; and (6) you are authorized and able to fulfill and perform the obligations and meet the conditions of a user as specified herein.
THE SITE AND MATERIALS ARE PROVIDED “AS-IS.” THE COMPANY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SITE OR MATERIALS IN TERMS OF AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR MATERIALS WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE IS WITH YOU. THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE SITE SHALL CREATE ANY WARRANTY OF ANY KIND.
LIMITATION OF LIABILITY
The Company shall have no responsibility to provide you access to the Site. You acknowledge and agree that the Company shall not be liable or responsible for any claim, damage, or loss resulting, directly or indirectly, from a cause beyond the Company’s control, including, but not limited to, offers or promotions made available on the Site, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL THE COMPANY NOR ANY OF ITS SUBSIDIARIES OR THIRD PARTY CONTENT PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES RELATING TO OR RESULTING FROM YOUR USE OR INABILITY TO USE THIS SITE OR ANY OTHER SITE YOU ACCESS THROUGH A LINK FROM THIS SITE OR FROM ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF ELECTRONIC MAIL MESSAGES YOU SEND US, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF THE COMPANY FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SITE, RESULTS FROM USE OF THE SITE, OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT YOU PAID TO THE COMPANY FOR ANY PRODUCT OR SERVICE. THESE SHALL BE CONSIDERED LIQUIDATED DAMAGES AND NOT A PENALTY EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIABILITY, IF ANY, SHALL BE COMPLETE AND EXCLUSIVE.
SECTION 6 – Indemnification
SECTION 7 – Governing Law
This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of California, as applied to agreements entered into and completely performed in the State of California without regard to conflicts of laws rules. In the event, and for whatever reason, should the arbitration clause below be inapplicable then you consent to the jurisdiction of the federal or state courts located in Los Angeles County, California for purposes of any suit, action or proceeding arising out of these Terms, and you hereby consent to such exclusive and personal jurisdiction and venue. Any claim you might have against The
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Company must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. In addition, you agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please contact the Company if you wish to receive a printed copy of this Agreement. If any Material on this Site, or your use of the Site, is contrary to the laws of the jurisdiction where you are when you access it, the Site is not intended for you, and we require that you not use the Site. Those who choose to access this Site from outside the United States do so on their initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.
SECTION 8 – ARBITRATION AND CLASS ACTION WAIVER
NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASS WIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
SECTION 9 – Enforcement
You have no reasonable expectation of privacy while using the Site because the Company reserves the right to view, monitor, and/or record activity on the Site (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of the Site may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. You shall therefore not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by the Company for use of or with the Site. Moreover, you also acknowledge that any breach, threatened or actual, of this Agreement by you may cause irreparable injury to The Company and/or its licensors, such injury would not be quantifiable in monetary damages, and the Company and/or its licensors would not have an adequate remedy at law. You therefore agree that the Company and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, you hereby waive any requirement that the Company or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to the Company to enforce any provision of this Agreement.
SECTION 10 – Site Modifications
We reserve the right at any time, and without notice to you or any third party, to modify, suspend or discontinue any part of the Site. We also reserve the right, in our sole discretion, to impose limits on certain features and services.
SECTION 11 – Third-Party Links
The Site may include links to other sites, some of them operated by affiliated companies of the Company, and some of them operated by third parties. The Company is not responsible for examining or evaluating the content, accuracy, or privacy policies of any third-party-linked site or any link contained in a third-party-linked site. The Company expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites, and the inclusion of a third-party link on the Site does not imply our endorsement of those third party companies or products. If you decide to access any of the third-party sites linked to this Site, you do this entirely at your own risk.
SECTION 12 – DMCA Notice and Take-Down Procedures; Copyright Agent
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement (NOCI) to the Company by providing the following information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
Identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
Identification or description of where the material that you claim is infringing is located on the Site, with enough detail that the Company may find it on the Site;
Your address, telephone number, and email address; A statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner or intellectual property owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Our DMCA agent designated to receive claims of copyright or other intellectual property infringement may be contacted by emailing the Company at firstname.lastname@example.org.
SECTION 13 – Termination
We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. You acknowledge and agree that the Company shall have the sole right to determine in its reasonable discretion whether you are engaging in any unauthorized activity and/or violating any term or conditions of this Agreement. You may also terminate at any time by ceasing to use the Site. But, all applicable provisions of this Agreement will survive termination, as outlined below. Any licenses from the Company and any right to use the Site shall immediately cease upon termination of this Agreement.
SECTION 14 – Intentionally Omitted
SECTION 15 – User Comments, Feedback and Other Submissions
If you send certain specific submissions, including by not limited to contest entries, suggestions, reviews, photographs, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “feedback”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments. By transmitting any feedback to the Company, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, copyright, trademark, privacy, personality or other personal or proprietary right) and that you have all rights necessary to convey such feedback to the Company. In addition, any feedback received by the Company will be deemed to include from you a perpetual, non-exclusive, irrevocable, transferable, royalty-free right and license for the Company to adopt, use, copy, print, display, reproduce, modify, publish, post, disseminate, transmit, distribute, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such information, material, or content, and you hereby waive any claim to the contrary.
SECTION 16 – Miscellaneous
SECTION 17 – Contact Information
339 7th Ave
San Diego, CA, 92101
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