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I. Dropkart Terms of Service
Effective date: This Terms of Service is effective and was last updated as of April 6, 2012
A. The Dropkart website (the "Website") is owned and operated by Dropkart, Inc. ("Dropkart", “we”, “us” or "our"). By accessing or using the services on our Website (the "Services") users of the Website and the Service (the "users", "you") agree and acknowledge to be bound by these Terms of Service (the "Terms"). The Terms govern any information, links, tags, comments, messages, images, graphics or other materials uploaded, downloaded, displayed or appearing (collectively, the "Content") as a result of using of the Services. By accessing or using the Services, you agree to be bound by these Terms.
B. Dropkart may attempt to notify you when major changes are made to these Terms. However, you are advised to periodically review the latest version. We may, in our sole discretion, modify or revise these Terms and policies at any time by giving notice on the Website, and you agree to be bound by such modifications or revisions. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.
II. Dropkart User Accounts
A. Creation of a User Account
In order to create a user account on the Website (a “User Account”), you agree (i) to be bound by these Terms, (ii) to provide a valid email address directly or through registration channel such as Facebook Connect, and (iii) to provide any other information required during the registration process. You are responsible for maintaining the security of the User Account and password. You are also responsible for all content that is posted to the Website using the User Account provided to you, and any other activity originating from the User Account provided to you. You are responsible for providing complete and accurate information when registering for a User Account. By creating an account, you hereby agree to comply with all applicable laws. We reserve the right to deny registration of any individual or entity, and to deny access to our Services to any individual or entity. You also acknowledge and agree that you shall have no ownership or other property interest in the User Account provided to you.
B. Termination of Account and Service
i. A user account created on our Website will be considered active until we receive a user request to deactivate or delete it. However, for any account that has not been used for 180 days we reserve the right to terminate the account and any and all content associated with that account.
ii. We reserve the right to suspend, terminate, modify, or delete (i) the User Account provided to you or (ii) your access to our services or portions thereof, including without limitation, any Content you or other users submit. We may terminate at any time, and delete the content of, and user accounts which are, or which are suspected of, failing to comply with any of these terms, including, without limitation, prohibited actions as further set forth below; or which are, or may have, or are suspected of engaging in illegal or improper use of the service. We reserve the right to terminate such service with or without notice. In the event of any of the above, we reserve the right to reassign your User Name and any or all of the Content associated with your user account.
iii. We reserve the right to cease offering and or supporting the Service or any part of the Service at any time either permanently or temporarily, at which point your use of the Service or a portion thereof may be automatically terminated or suspended with or without notice.
iv. We will not provide refunds, benefits or other compensation to users in connection with our exercise of any of our rights hereunder.
v. You may cancel any User Account registered to you at any time by following the instructions provided.
III. General Terms & Conditions of Service
A. You are responsible for your use of the Website and Services, for any content you post, or interact with, in using the Services, and for any consequences or liability arising therefrom. Other users of the Services will be able to view the public Content you post or display. You should only provide Content you are comfortable sharing under these Terms. Although you may be able to mark some Content as private, such privacy features are provided on a commercially reasonable basis, and we make no representations or warranties about the security of such privacy settings.
B. The Services provided may include certain advertisements, paid sponsorships, links or paid Content through the Services, or any other information at our sole discretion. The type, form, and extent of advertising Content provided on the Website is subject to change at any time. In consideration for our providing access to you, and for your use of the Services, you agree that Dropkart and our third party partners and providers may deliver advertising and sponsorships on the Services or in connection with the display of Content or information from the Services whether submitted by you or others.
C. The Services that we provide are constantly evolving. We retain the right to make any changes to the site, with or without notice. We may also establish limits on the usage and storage of Content, at our sole discretion, without prior notice to you.
IV. Content posted or generated by users and third parties
A. We do not review new or existing Content posted on the Website. By transmitting Content to our servers and network, you warrant and guarantee us that you have the right to make this Content available for use. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party rights (including rights to publicity and privacy), unless you have express permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Dropkart all of the license rights granted herein.
B. Any use of Content associated with the Services, or obtained by you through the Services, is at your own risk.
C. We do not warrant, guarantee, support, or represent the completeness, reliability, truthfulness or accuracy of any Content appearing on the Website. You understand that by using the Services, you may be exposed to Content you may find offensive, inaccurate, inappropriate, deceptive or in some cases, mislabeled. We expressly disclaim any liability for any Content, including, but not limited to, any errors or omissions within any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services.
D. The Service may contain links to third party websites that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, we will not and cannot review, approve, disapprove, or edit the content of any third-party site. By using the Service, you expressly indemnify us against any and all liability arising from your use of any third-party website or Content.
V. Prohibited Actions
A. In consideration for use of the Services, you agree that you will not:
i) Engage in any actions with respect to your use of the Website that are unlawful, misleading, harmful, obscene, libelous, deceptive, fraudulent, offensive, threatening, abusive, harassing, defamatory, vulgar, invasive of another’s privacy, hateful, or explicit in graphic descriptions, or sexual or violent in nature
ii) Transmit any Content that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of any impermissible classification, including, but not limited to posting discriminatory, racist Content; or transmit any Content that includes images or videos portraying realistic images of people or animals being killed, maimed, tortured or injured;
iii) Transmit any Content that infringes any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
iv) Transmit any Content that you do not have a right to transmit under any law or under any contractual or fiduciary relationship;
v) Transmit any Content that encourages excessive consumption of alcohol or illegal substances, or encourages minors to consume alcohol or smoke cigarettes;
vi) Transmit or post web links to any material that contains software viruses or any other computer code, files, or executable programs designed to interrupt, destroy, or limit the functionality of the Website, the Service, or any system or computer from which our visitors and users access the Website;
vii) Interfere with, cause excessive usage on, or disrupt the Website or servers or networks linked to the Website, or disobey any requirements, procedures, policies, or regulations of networks linked to the Website;
viii) Violate any applicable local, state, national, or international law;
ix) Transmit any Content that includes images or videos of children, without first obtaining the consent of their parent to post such Content;
x) Transmit any Content, or take any other actions with respect to your use of the Website, that would constitute, or would otherwise encourage, criminal conduct or conduct that could give rise to civil liability, or send unsolicited messages to Users (e.g., “spam”) for commercial purposes;
xi) Use the Website for commercial purposes without our prior written consent; or Solicit other guests of the Website to become members of any commercial or personal online service or other group or organization without first obtaining our express written consent;
xii) Collect the information or data contained on the Website, or “mine”, “scrape”, or otherwise gather and organize in any way the information or data on the Website. You may not use the Website Content or any other features or the Website itself to enable or allow the display of a portion of the Content for reproduction purposes, duplication, or re-transmittal of such Content in any manner, in any medium or universe.
VI. Digital Millennium Copyright Act
A. DMCA “Take-Down” Notices. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information (see 17 U.S.C 512(c)(3) for further detail):
A physical or electronic signature of a person who has been authorized by the owner of the allegedly infringed right to act on their behalf; Identification of the copyrighted work or other intellectual property that has allegedly been infringed; Identify the material on the Website that is alleged to be infringing, with sufficient description and detail so that we are able to locate it on the Website; Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the information provided in the notice is accurate, and under penalty of perjury, that you are the owner of the copyright interest involved or that you are legally authorized to act on behalf of that owner.
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law. Such written notice must be sent to our designated agent via email. If you are not able to access such tool, you may communicate with us in writing.
Copyright Agent, Dropkart, Inc. 325 Sharon Park Drive, Menlo Park, CA 94025. Email: email@example.com. Subject: “copyright notice”
B. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
C. Counter-Notices. If you believe that your content that has been removed from the Website is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your content or materials, you may send a counter-notice containing the following information to us using the contact information set forth above: Your physical or electronic signature;
A description of the content that was removed and the link location or folder name of the content before it was removed;
A statement that you have a good faith belief that the content was removed as a result of an inaccuracy or a misidentification of the content; Your name, physical address, telephone number, and email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
E. If a counter-notice is received by our copyright agent, Dropkart may send a copy of the counter-notice to the original notifying party informing such person or entity that it may reinstate the removed content as soon as practicably possible. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may, in Dropkart’s discretion, be reinstated on the Website after receipt of the counter-notice.
A. You hereby agree to defend, indemnify and hold us, our business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents (collectively, the “Indemnified Parties”) harmless from and against any damages, losses, liabilities, settlements, and expenses (including without limitation, costs and reasonable attorneys’ fees) in connection with any claim or action that (i) arises from any alleged breach by you of this Agreement or any representations, warranties and/or covenants contained herein, (ii) arises from the Content or effects of any messages you distribute using our Service, or (iii) otherwise arises from or relates to your use of the Service. In addition, you acknowledge and agree that the Indemnified Parties have the right to seek damages when you use our Service for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and or consequential damages.
VIII. Electronic communications
A. You consent to receive communications from us electronically. Dropkart may communicate with you by e-mail to your registered email address or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically shall satisfy any legal requirement that such communications be in writing.
IX. Disputes & Governing Law
A. You and Dropkart agree that any legal claim relating to these Terms (a “Claim”) will be resolved as follows:
Informal Resolution. You and Dropkart agree to first attempt to resolve any Claim informally. Accordingly, neither party may initiate a legal proceeding for at least 30 calendar days after on party notifies the other of a Claim in writing. Dropkart will send its notice to your email address. You will send your notice to firstname.lastname@example.org.
Arbitration. Dropkart and you (including your respective predecessors in interest, successors and assigns) agree to arbitrate all disputes and claims arising out of or relating to this Agreement between Dropkart and you. Arbitration shall be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and shall be administered by the AAA. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. If the arbitrator finds that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), the payment of all fees shall be governed by the AAA Rules. In such case, you agree to reimburse Dropkart for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. If the arbitrator grants relief to you that is equal to or greater than the value of your Demand, Dropkart shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration. You agree that, by entering into this Agreement, you and Dropkart are waiving the right to a trial by jury.
YOU AND DROPKART AGREE THAT YOU AND DROPKART 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. Further, you agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void.
Formal Resolution. If we cannot resolve a Claim informally, you and Dropkart each agree to submit to personal jurisdiction in California, provided that neither you nor Dropkart shall be precluded from filing a Claim in small claims court for disputes within the small claims court jurisdictional level.
This Agreement is governed in all respects by the substantive laws of the State of California and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Those who choose to access the Website from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Website from any territory where the content is illegal is prohibited. You may not use or export any of the Website materials in violation of U.S. export laws and regulations.
X. Disclaimers and limitation of liability
A. No Express or Implied Warranties. OUR WEBSITE AND SERVICE ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS AS TO HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY DEPENDING ON YOUR PLACE OF RESIDENCE.
WE ARE NOT LIABLE FOR ANY DELAY OR FAILURE TO PERFORM RESULTING FROM ANY CAUSES BEYOND OUR REASONABLE CONTROL. AS SUCH, WE ARE NOT LIABLE FOR ANY ACTS OR OMISSIONS BY ANY OTHER PARTY FURNISHING A PORTION OF OUR. WE DO NOT WARRANT THAT OUR SERVICE WILL BE CONTINUOUS AND UNINTERRUPTED, SECURE OR ERROR OR VIRUS FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF OUR SERVICE. USE OF OUR SERVICE AND ANY RELIANCE BY YOU UPON OUR SERVICE IS AT YOUR SOLE RISK. THIS INCLUDES ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE.
B. LIMITATION OF LIABILITY. WE SHALL NOT BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE RISK OF SUCH DAMAGES. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT OUR LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEE WE COLLECT FROM YOU.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR YOUR USE OF OUR WEBSITE, OUR SERVICE OR STORAGE, DISPLAY OR TRANSMISSION OF ANY CONTENT OR FOR YOUR OR ANY THIRD PARTIES’ DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW
A. Right to Assign. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or delegated by us, in whole or in part, without restriction.
B. No Agency. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
D. Contact Us. Please note that communications made through email and messaging systems shall in no way be deemed to constitute legal notice to us or any of our officers, directors, employees, agents or representatives. Legal notices shall be provided through the postal address contained hereinabove.