Shindig User Terms of Service Agreement
Effective: May 1, 2011
- Acceptance of the Terms and Conditions.
- Shindig, Inc. (“Shindig”) provides and makes available this web site (the “Web Site”) through which Shindig provides and makes available a platform whereby any user of the Web Site (“you” or “User”) may participate in online events, collaborative work, game play, socialization and other offerings (the “Platform”). All use of the Web Site and Platform by a User is subject to the terms and conditions contained in this Terms of Service Agreement (this “Agreement”). Please read this Agreement carefully. By clicking “Accept” and otherwise using the Web Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
- You understand and agree that Shindig may modify this Agreement at any time without prior notice. In the event of a modification to this Agreement, you shall be prompted to accept the Agreement as modified when you next log in to the Platform. If you do not accept the terms of the Agreement as so modified, you shall not be permitted to log in to the Platform. You may read a current, effective copy of this Agreement at any time by selecting the applicable link on the Web Site.
- You represent and warrant that all you are 13 years or older. You are not authorized to use the Platform if are under 13 years of age. If you registered and are given a username and password, you will be responsible for all activities occurring under your username and for keeping your password secure. You shall provide Shindig with prompt notice in the event you suspect that your user name and password may have been compromised.
- Use of the Web Site.
- This Web Site contains material, including but not limited to software, text, graphics and images (collectively, “Content”). All Content is either owned by Shindig or made available to Shindig through arrangements with third parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any authorized copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Web Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content. Content protected by this Section 2.1 includes, without limitation, certain third party copyrighted images made available on the Web Site. You acknowledge that you have no rights in such Content.
- The trademarks, service marks, and logos of Shindig (the “Shindig Trademarks”) used and displayed on this Web Site are registered and unregistered trademarks or service marks of Shindig. Other company, product, and service names located on the Web Site may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Shindig Trademarks, the “Trademarks”). Nothing on this Web Site or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Web Site without the prior written consent of Shindig specific for each such use. The Trademarks may not be used to disparage Shindig or the applicable third party, Shindig's or third party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without Shindig's prior written consent. All goodwill generated from the use of any Shindig Trademark shall inure to Shindig's benefit.
- The Web Site contains links to third party web sites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Shindig is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
- Certain elements of the Web Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by this Agreement. None of the Content for this Web Site may be retransmitted without the express written consent from Shindig for each and every instance.
- You acknowledge that Shindig may establish general practices and limits concerning use of the Platform, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Shindig's services on your behalf. You agree that Shindig has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Platform. You acknowledge that Shindig reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Shindig reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
- The Platform includes certain services that are available via a mobile device, including (a) the ability to upload content to the Platform via a mobile device, (b) the ability to receive and reply to messages and receive and send text messages from a mobile device, (c) the ability to browse the Platform and the Web Site from a mobile device and (d) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Platform through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile device, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Shindig and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Shindig account information to ensure that your messages are not sent to the person that acquires your old number.
- The Platform may be used for personal use only and may not be used for direct commercial endeavors; provided, however, that if you are a Service Provider (as defined below), you may use the Platform for commercial endeavors solely to provide the Services (as defined below).
- Although Shindig has no obligation to monitor the Submissions, you acknowledge and agree that we may do one or all of the following: (a) monitor the Submissions; (b) alter, edit, or remove any Submission in whole or in part; or (c) disclose any Submissions.
- You represent and warrant to Shindig that your Submissions are original to you or you have obtained all permissions, releases, rights or licenses required to grant the rights and assignment granted herein without obtaining any further releases or consents.
- The transmitting, posting or making available of Submissions through the Platform does not indicate any approval or endorsement by Shindig of such Submissions. Shindig is not responsible for, and hereby disclaims any and all liability that may arise from the Submissions or any act of accessing, browsing, contributing to or otherwise using the Platform.
- 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 on the Web Site infringe your copyright, you (or your agent) may send Shindig a notice requesting that the material be removed, or access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see http://copyright.gov/ for details). Notices and counter notices with respect to the Web Site should be sent via registered mail to Shindig at:
665 Broadway, Suite 303
New York, NY 10012
Attn: Copyright Agent
Notices must include the following:
- An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
- Identification of the copyrighted work(s) that the owner claims have been infringed;
- A description of the material that the owner claims is infringing, and the location of where the original or authorized copy of the copyrighted work exists;
- A clear description of where the infringing material is located on the web site, including, as applicable, its URL;
- The address, telephone number and email address of the copyright owner;
- A statement that the copyright owner has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by the copyright owner, made under the penalty of perjury, that the information as contained in the notice is accurate, and that such individual is the copyright owner or is authorized to act on the copyright owner's behalf.
- In using the Web Site and Platform, you may interact with other Users and/or persons engaged by Shindig to provide services to Users through the Platform (such persons, “Service Providers”, and such services, “Services”).
- Shindig makes no representation or warranty (a) that any Service Provider shall be willing or able to provide you Services; (b) that any Service Provider or Service shall be satisfactory or meet your needs; (c) as to the completeness or quality of any Service; (d) as to the truth, accuracy, completeness, quality or usefulness of any information communicated to you by a Service Provider (“Third Party Information”); or (e) as to the qualifications or expertise of any Service Provider. Shindig does not endorse or recommend any Service Provider or Service, and is not involved with the substance of your relationship with any Service Provider. You acknowledge that Third Party Information does not represent Shindig's opinion or advice. In no event shall Shindig (i) be liable for any damages whatsoever resulting from your reliance on Services or Third Party Information, (ii) have responsibility for any act or failure to act of any Service Provider, or (iii) refund any amounts paid by you for any Service (including instructions performed by Service Provider). You acknowledge that Service Providers are not employees of Shindig. You hereby release the Shindig Parties (as defined below) from any claims, actions or demands arising or resulting from the acts of Service Providers.
- You agree that you are responsible for your own use of the Web Site and the Platform. You agree that you will use the Web Site and the Platform in compliance with all applicable local, state, national, and international laws, rules and regulations, including, but not limited to, any laws regarding the transmission of technical data exported from your country of residence and all United States export control law.
- You agree that you will NOT:
- Transmit, post or otherwise make available through use of the Platform any Submission that is unlawful, racist, hateful, libelous, defamatory, obscene, offensive, that intentionally discriminates against or harasses particular individuals or groups, or is otherwise objectionable;
- Transmit, post or otherwise make available through use of the Platform any private information of any other person without his or her express consent;
- Transmit, post or otherwise make available through use of the Platform any Submission that infringes any third party's intellectual property or other rights;
- Use the Platform for any unlawful purpose, or transmit, post or otherwise make available through use of the Platform any material that would give rise to criminal or civil liability;
- Perform any act of fraud or deception on Shindig, any User or Service Provider or any third party through your use of the Platform;
- Impersonate any person or entity, including any Shindig employees, misrepresent yourself or falsely state or otherwise misrepresent your affiliation with any person or entity;
- Imply that Shindig endorses any of your statements or positions;
- Take any action that imposes an unreasonable burden on Shindig's server or the infrastructure of the Web Site or Platform;
- Use any device, software, routine or other means to interfere or attempt to interfere with the proper working of the Platform or Web Site or any activity being conducted on the Platform or Web Site;
- Attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or making up the Platform or the Web Site; or
- Delete or alter any material posted on the Web Site by Shindig or any other person or entity.
You acknowledge that Shindig reserves the right to charge for any portion of the Platform and to change its fees (if any) from time to time in its discretion. All fees paid by you for your use of any portion of the Platform, including without limitation for any Service, are non-refundable.
SHINDIG, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “SHINDIG PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE SHINDIG PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEB SITE, PLATFORM AND CONTENT AT YOUR OWN RISK.
THE SHINDIG PARTIES DO NOT WARRANT THAT THE WEB SITE OR PLATFORM WILL OPERATE ERROR-FREE OR THAT THE WEB SITE OR ITS SERVER, THE PLATFORM OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEB SITE, PLATFORM OR CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO SHINDIG PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE, PLATFORM AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE SHINDIG PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
- IN NO EVENT SHALL ANY SHINDIG PARTY BE LIABLE TO ANY USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEB SITE, PLATFORM OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SHINDIG PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF THE SHINDIG PARTIES TO ANY USER FOR DIRECT DAMAGES ARISING FROM THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEB SITE, PLATFORM OR CONTENT WILL NOT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY USER TO SHINDIG IN THE SIX MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
- Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE SHINDIG PARTIES TO ANY USER SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Shindig reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and/or your account and/or your access to all or any part of the Web Site, Platform or Content at any time and for any reason without prior notice or liability. Shindig reserves the right to change, suspend, or discontinue all or any part of the Web Site, Platform or Content at any time without prior notice or liability.
- Sections 2 through 12 shall survive the termination of this Agreement.
- We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Web Site, Platform or Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
- The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
At Shindig's or your election, all disputes, claims, or controversies arising out of or relating to this Agreement or the Platform that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before J.A.M.S./Endispute, Inc., or its successor. Shindig shall advance the costs of such binding arbitration, but you agree that should Shindig prevail in the arbitration, Shindig is entitled to reimbursement of all costs. Unless otherwise agreed by the parties, arbitration will be held in New York City, NY before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by J.A.M.S./Endispute, Inc., and will be conducted in accordance with the rules and regulations promulgated by J.A.M.S./Endispute, Inc. unless specifically modified in this Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator will have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three (3) depositions as of right, and the arbitrator will not have the power to order the answering of interrogatories or the responses to requests for admission or the inspection of premises. In connection with any arbitration, each party must provide to the other, no later than ten (10) business days before the date of the arbitration, the identity of all persons that may testify at the arbitration, a copy of all documents that may be introduced at the arbitration or considered or used by a party's witness or expert, and a summary of the expert's opinions and the basis for said opinions. The arbitrator's decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The parties covenant and agree that they will participate in the arbitration in good faith. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration as set forth above, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the city of New York, in the State of New York. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of Shindig to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Shindig unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Shindig and you, this Agreement (and the Service Provider Terms of Service Agreement, if you are a Service Provider) constitutes the entire Agreement between you and Shindig with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. You shall not assign your rights or obligations under this Agreement, in whole or in part, without Shindig's prior written consent, and any purported assignment by you without Shindig's consent shall be null and void. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. Any information submitted or provided by you to the Web Site might be publicly accessible. Important and private information should be protected by you. Shindig is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.