A. INTRODUCTION AND ACCEPTANCE
B. INTELLECTUAL PROPERTY
C. ACCESS AND USE
You represent and warrant that you: (a) have not previously been suspended or removed from the Services or from any other offerings by DBIGP; (b) that you have full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party; and (c) that you understand that the use of the Services is at your own risk. The Service Content may not be appropriate or functional for use outside the United States of America. Users located outside the United States use the Services understanding this limitation.
(B) We may offer certain portions of our Services at no charge (e.g., websites) and others (e.g., mobile applications) for a one-time fee, on a subscription basis, or under any other lawful pricing structure. In all instances, our Services are not being sold to you; rather, you are being granted a limited license to use our Services. In addition, the license to use of any of our paid Services does not necessarily transfer across operating systems and/or different equipment (e.g., mobile devices, computers). For example, unless we specifically tell you otherwise, the use of any of our mobile applications is limited to the relevant device and/or operating system you are using at the time you purchase the license to use the application.
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Service Content;
(ii) circumvent, disable, or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Service Content;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Services (or any portion thereof) or Service Content for any purpose without our express written permission;
(iv) collect or harvest any personally identifiable information or non-personally identifiable information from our Services including, without limitation, user names, passwords, email addresses;
(v) solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
(vi) attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same;
(vii) decompile, reverse engineer, or disassemble any portion of our Services or other Service Content;
(viii) use network-monitoring software to determine architecture of or extract usage data from our Services;
(ix) encourage conduct that violates any local, state, or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership – as defined below);
(x) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
(xi) engage in any conduct that restricts or inhibits any other user from using or enjoying our Services.
(F) You understand and agree that your use of the Services and/or Service Content while operating a motor vehicle (or during any other activity that requires your attention) may be distracting, dangerous, or prohibited by law. You are solely responsible for your exercising good judgment, acting in a safe and responsible manner, and obeying all laws and regulations at all times. You understand that failing to pay full attention in the operation of a vehicle or in other activities may cause an accident, damage, injury, death, or other serious consequences. You assume sole responsibility for your use of the Services and Service Content.
D. USER REGISTRATION & PROMOTIONAL MESSAGES
(B) Promotional Messages. Our Services may include sending you promotional emails/newsletters and/or text/SMS messages. These are typically recurring message programs that, upon registration, will be sent to you until you unsubscribe via any of our disclosed methods. To receive any of these communications from us, you will be required to register and provide certain information about you (e.g., full name, street address, email address, mobile number).
(i) Emails/Newsletters. You may opt-out of receiving our emails/newsletters by using the options included in the communication we send you (e.g., using the “Unsubscribe” feature provided in the footer of our emails).
(ii) Text/SMS Messages. In the event that we utilize a Text/SMS Message Service (“Message Service”), the following terms will apply: (1) unless we explicitly tell you otherwise in advance, we will not charge you for the Message Service. However, “Message and Data Rates May Apply”; which means that, depending on your service plan, you may be charged message and/or data charges by your wireless carrier; (2) by enrolling in the Message Service, you certify that you are either the account holder or otherwise responsible for paying any wireless carrier charges associated with the Message Service or, if you are under the age of 18, that you have the permission of the account holder/person responsible for any such charges; (3) we may send you up to 20 messages per month through our Message Service; (4) if you have any questions about our Message Service or need assistance, you may contact us at firstname.lastname@example.org; (5) we are not aware of any wireless carriers that do not support our Message Service, however, you must have a text or SMS enabled mobile phone; (6) we do not guarantee or warrant that you will receive all or any of our messages; and (7) our Message Service may be administered by a third party (the “Administrator”) and we reserve the right to condition use of our Message Service to your acceptance of applicable Administrator terms and conditions.
E. USER CONTENT
(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “Submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title, and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not Submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you Submit.
(C) You represent, warrant, and covenant that you will not Submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable or otherwise violates any applicable law;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
(vi) contains a formula, instruction, or advice that could cause harm or injury; or
(vii) is a chain letter of any kind.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.
(E) By Submitting User Content, you also grant us the worldwide, perpetual, irrevocable, fully sublicensable, and transferable right, but not the obligation, to use any and all names, identities, titles, likenesses, distinctive appearances, physical likenesses, images, portraits, pictures, photographs (whether still or moving), screen personas, voices, vocal styles, statements, gestures, mannerisms, personalities, performance characteristics, biographical data, signatures, and any other indicia or imitations of identity or likeness listed, provided, referenced, or otherwise contained in the User Content (all attributes, collectively, per person, a “Persona”), including, without limitation, your name and geographical location (e.g., “J. Doe – Detroit, MI”), for purposes of advertising and trade, in any format, medium, or technology now known or later developed without further notice, approval, or compensation, unless prohibited by law.
(F) Without limiting the generality of the foregoing, we reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising, marketing, promotional, and commercial purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution and marketing partners, accounts, and third party service providers (including their downstream users).
(G) We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content.
F. SERVICE CONTENT & THIRD PARTY LINKS
(A) We provide the Services including, without limitation, Services Content for educational, entertainment, and promotional purposes only. You may not rely on any information and opinions expressed on any of our Services for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any Service Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Service Content.
(B) In many instances, Service Content will include content posted by a third party or will represent the opinions and judgments of a third party. We do not endorse, warrant, and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made through the Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.
(C) Any health related information that may be posted is not intended to be a substitute for professional medical advice. We do not endorse or warrant the validity of any such health related statements found through our Services or in any third party sites referenced in the Services. This information should be treated as general in nature which may be helpful to some persons but not others, depending upon their personal medical needs. You should always consult with your physician prior to changing or undertaking a new diet or exercise program. Never disregard professional medical advice or delay in seeking it because of something you have read on the Services.
(D) If there is a dispute between persons accessing the Services or between persons accessing the Services and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release DBIGP its officers, directors, members, shareholders, employees, parents, partners, including, without limitation so-called distribution and marketing partners, licensees, successors and assigns, agents, representatives, affiliates, subsidiaries, and their related companies (collectively, “DBIGP Parties”) from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
(E) Our Services may contain links to other websites, social media pages, or applications maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the actions of, or the content found on these third party websites, social media pages, or applications. You assume sole responsibility for your use of third party links. We are not responsible for any content posted on third party websites or applications or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third party or their website, social media pages, or applications.
H. DISCLAIMER OF WARRANTIES
(A) YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES AND SERVICE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, DBIGP AND THE DBIGP PARTIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR SERVICES OR SERVICES CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OR ACCESSED THROUGH OUR SERVICES; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES; (6) WARRANTIES THAT YOUR USE OF OUR SERVICES OR SERVICES CONTENT WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN THE SERVICES WILL BE CORRECTED.
I. LIMITATION ON LIABILITY
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
K. COPYRIGHT POLICY
We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Membership of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
L. CHOICE OF LAW; JURISDICTION AND VENUE
M. DISPUTE RESOLUTION & MANDATORY ARBITRATION
(A) We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information, and the proposed resolution. You agree to contact us with disputes by contacting us at: email@example.com. We will contact you based on the contact information you have provided us or that we obtain by other means.
(B) If after thirty (30) days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
(C) We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from AAA’s website (www.ADR.org) or by calling AAA at (800) 778-7879.
(D) We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction
(E) Exception to Arbitrate: Either party may bring qualifying claims in small claims court. Further, pursuant to the “NO CLASS ACTION” section below, we each agree that any arbitration will be solely between you and DBIGP, not as part of a classwide claim (i.e., not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the classwide dispute must be brought in court.
N. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, BOTH PARTIES WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE 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.
O. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, BOTH PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
P. AMENDMENT; ADDITIONAL TERMS
(A) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.