User Agreement
Last revised: December 19, 2008
Your use of sites operated or services performed by 1stFriday.com, Inc. ("1stFriday.com") constitutes your acceptance of these terms of service, as well as the terms and conditions contained in the Privacy Policy and the Community Guidelines.
Acceptance of Terms
This User Agreement (the "Agreement") applies to all products and services offered by 1stFriday.com (the "Company" or "we") through any of the Company's properties and any versions thereof (collectively, the "Network"). In addition, when using particular Network services, you will be subject to any guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement. BY USING THE NETWORK, YOU ARE STATING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DISAGREE WITH ANYTHING IN THIS AGREEMENT, PLEASE DO NOT USE THE NETWORK. You agree that the Company may change the terms and conditions of this Agreement at any time by posting such changes on the Network and that your continued use of the Network after any such posting will constitute your acknowledgment and acceptance of the revised terms and conditions.
Registration Obligations
To use the Network, you may not have to register to become a member ("Member"). As a Member, however, you will have access to various services to which non-Members do not have access, some of which will enable you and other Members to interact with each other. If you would like to register to become a Member, please complete the membership registration form for the appropriate Company property. You agree to (a) provide true, accurate, current and complete information as prompted by the registration form and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. You are responsible for maintaining the confidentiality of any password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security. If any information provided by you on the registration form is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to so believe, we have the right to suspend or terminate your membership without any right on your part for refund of any fees paid and to refuse to provide you with any future membership. If we have reason to believe that you have registered someone other than yourself, we will cooperate with any law enforcement investigation that may result from such misrepresentations and shall have the right, in our sole discretion, to disclose any information you provided to us in connection with such registration. The Company makes a good faith effort to prohibit registration as a Member by, and will not knowingly collect or store personal information from, children under the age of 13. In addition, please be aware that we have created certain areas on the Network that contain adult or mature content. You must be at least 18 years of age to access and view such areas.
Fees
We reserve the right at any time to charge fees for access to Network content or services or to portions of the existing Network content or services or to the Network as a whole. In no event will you be charged for access to any Network content or service, or to the Network as a whole, unless we obtain your prior agreement to pay such charges. If you do not consent to such charges, however, you may not have access to paid content or services.
Modifications
We reserve the right to modify or discontinue, temporarily or permanently, the Network (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any such action.
Network Rules
Following are some basic rules that apply to the Network and that you agree to follow. If you violate any of the Network rules, or if we have reasonable grounds to so believe, we have the right, in addition to pursuing any and all legal remedies available, to deny you access to the Network, to suspend or terminate your membership without any right of refund to you and to refuse to provide you with any future membership. You agree not to use the Network to:
upload, store, post, email or otherwise transmit any: (a) material that is inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, racist, bigoted or otherwise objectionable, (b) material that you do not have a right to transmit under any applicable law or under contractual or fiduciary relationships, (c) material that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party, (d) advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except where specifically permitted, or (e) material 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;
connect in an unauthorized manner (i.e., by means other than the technology provided by the Company) to the community environment the Company provides for use by its Members on the Network or facilitate such unauthorized connections through the provision of software or other computer code specifically designed to allow a user to make such unauthorized connections to the Company's community environment;
copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the technology or any other software the Company provides through the Network;
impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Network;
disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Network are able to type (e.g., "flooding"), or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
interfere with or disrupt the Network or servers, networking and computing equipment or networks connected to the Network, or disobey any requirements, procedures, policies or regulations of networks connected to the Network;
initiate, facilitate, participate in or distribute a denial of service attack, exploit any documented or undocumented vulnerability in the Network and its component networking or computing equipment, or otherwise initiate, facilitate, or participate in any disruptive action aimed at the Network or the Internet in general;
try to gain access to areas that are private to the Company or to other Network users;
violate any applicable local, state, national or international law or regulation;
stalk or otherwise harass another;
harm minors in any way, including, without limitation, to establish unlawful contact with minors (whether on or off the Network);
collect, intercept or harvest member names; collect, intercept or store personal data about other users of the Network; or solicit or attempt to discover a user's password, member name, or other registration or usage information without the user's express knowledge and consent;
engage in or run raffles, lotteries, contests, or sweepstakes;
promote or provide instructions or information about how to engage in illegal conduct or commit illegal activities or activities intended to cause disruption to the Network, promote physical harm or injury, or promote any illegal act or act intended to cause harm or disruption to the Network or the Internet in general;
intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or
store any information or use any Web page or directory you create, including any member profile or posting in or to a public area, on or through the Network as storage for remote loading or as a door or signpost to another Web page, whether inside or outside the Network.
You acknowledge that we do not pre-screen material posted or transmitted on the Network. IN PARTICULAR, WE DO NOT CONDUCT BACKGROUND CHECKS OR OTHERWISE PRE-SCREEN MEMBERS FOR FELONY OR SEX OFFENSE CONVICTIONS. PLEASE TAKE APPROPRIATE SAFETY MEASURES TO INCREASE AWARENESS OF POSSIBLE RISKS ASSOCIATED WITH MEETING SOMEONE YOU HAVE MET THROUGH THE USE OF THE NETWORK SERVICES. We and our designees shall have the right (but not the obligation) in our sole discretion to review and edit, delete or refuse to post any material submitted for display or placed on the Network, including but not limited to messages, profiles, images, personals, and reviews. Without limiting the foregoing, we and our designees shall have the right to remove any material that violates this Agreement, that we believe in good faith may create liability for us, or that we deem is otherwise objectionable. You acknowledge and agree that we may preserve material and may disclose material if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any material violates the rights of third parties; or (d) in our sole judgment, protect the rights, property, or personal safety of the Company, its users or the public.
Privacy
Our Privacy Policy states in full our policy regarding how we handle information that we automatically collect about you or that you choose to submit to us.
Submissions
Through certain areas of the Network you may post, upload or submit material ("Submissions") for viewing by others or view Submissions of other users (e.g., communities, forums, personals, Member profiles, discussion rooms or video conferencing rooms). By making a Submission, you (a) automatically grant the Company and its affiliates and licensees the royalty-free, perpetual, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display and distribute the content of the Submission (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed, (b) permit any other user of the Network to access, view, store, or reproduce the Submission for that user's personal use, and (c) represent and warrant that public posting and use of your Submission by the Company and its affiliates and licensees will not infringe or violate the rights of any third party.
Dealings with Advertisers
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Network, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Network.
Links
Our provision of a link to any non-Network site or location is for your convenience and does not signify our endorsement of such non-Network site or location or its contents. We shall not be responsible for any information, software, or links found at any non-Network site or location, or for any transactions conducted at or through any linked non-Network site or location.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE NETWORK IS AT YOUR SOLE RISK. ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE NETWORK ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL SUCH MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED WITHOUT, AND THE COMPANY, ITS SUBSIDIARIES AND LICENSORS HEREBY EXPRESSLY DISCLAIM, ANY WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, OR NON-INFRINGEMENT. THE COMPANY, ITS SUBSIDIARIES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT THE NETWORK WILL FUNCTION WITHOUT INTERRUPTION, THAT THE NETWORK IS ERROR- OR DEFECT-FREE, THAT ANY SUCH DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE NETWORK AND THE SERVER(S) THAT MAKE THE NETWORK AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM THE COMPANY, ITS SUBSIDIARIES, LICENSORS OR OTHERWISE THROUGH YOUR USE OF THE NETWORK SHALL CREATE ANY WARRANTY. FURTHER, THE COMPANY, ITS SUBSIDIARIES AND LICENSORS DO NOT WARRANT OR REPRESENT THAT THE USE OR THE RESULTS OF THE USE OF ANY MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES INCLUDED IN OR AVAILABLE THROUGH THE NETWORK WILL BE CORRECT, ACCURATE, TIMELY OR RELIABLE.
LIMITATIONS ON LIABILITY
IN NO EVENT SHALL THE COMPANY, ITS SUBSIDIARIES OR LICENSORS, OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING OR DISTRIBUTING THE NETWORK BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING AND UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY), THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE NETWORK, ANY CHANGES TO THE NETWORK OR THIS AGREEMENT, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE NETWORK. THE COMPANY, ITS SUBSIDIARIES AND LICENSORS, AND ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING OR DISTRIBUTING THE NETWORK ARE NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. IF YOU ARE DISSATISFIED WITH THE NETWORK, OR ANY MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES INCLUDED IN OR AVAILABLE THROUGH THE NETWORK, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE NETWORK. THE FOREGOING LIMITATIONS ON LIABILITY SHALL BE APPLICABLE EVEN IF THE COMPANY OR THE APPLICABLE THIRD PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Indemnification
You agree to indemnify and hold the Company, its licensors and any other person or entity involved in creating or distributing the Network, as well as each of their respective parents, affiliates or subsidiaries and their respective directors, officers, employees and agents, from and against any and all claims, liabilities, damages, losses, costs, fees (including attorneys' fees) and expenses that such parties may incur as a result of or arising out of your (or, in the case of Members, anyone using your account's) use of, or conduct with respect to, the Network.
ALLOCATION OF RISK
YOU AGREE THAT THE DISCLAIMER OF WARRANTIES, LIMITATIONS ON LIABILITY, AND INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT REPRESENT AN AGREED-UPON ALLOCATION OF RISK AND FORM AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY, WITHOUT WHICH THE COMPANY WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE THE NETWORK.
Proprietary Rights
You acknowledge and agree that all content and materials available on or through the Network are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You may print or download one copy of the materials or content on the Network on any single computer for your personal, non-commercial use, provided that such materials remain unaltered and are accompanied by a clearly visible copy of any copyright or other proprietary notice appearing on such materials. Otherwise, you may not republish, retransmit, reproduce or otherwise use the materials or content. Systematic retrieval of data or other content from the Network to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from the Company is prohibited. In addition, use of the content or materials for any purpose not expressly permitted in this Agreement is prohibited. Except as expressly authorized by the Company, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or content. To obtain such authorization, contact the Company legal department by mail at:
1stFriday.com Inc.
Attn: Legal Department
Removal of material for which copyright infringement is claimed
The Company respects the intellectual property rights of others. Pursuant to Title 17 U.S.C. § 512, as amended by Title II of the Digital Millennium Copyright Act (the "Act"), the Company has implemented procedures for receiving written notification of claimed copyright infringements and for processing such claims in accordance with the Act. If you believe your work has been copied and is accessible through the Network in a way that constitutes copyright infringement, please fill out a Notice of Infringement Form and mail it to the following agent of the Company for notice of claims of copyright infringement:
1stFriday.com Inc.
Legal Department
6605 Ascot Drive
Oakland, CA, 94611
The information requested by the Notice of Infringement Form substantively complies with 17 U.S.C. § 512(c)(3)(A), which provides:
To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) 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.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent. Please provide a Notice of Infringement Form each time you wish to report alleged acts of infringement. Please note that the Company will, in appropriate circumstances, terminate the account of any Member who repeatedly posts infringing material on the Network.
Choice of Law & Jurisdiction and Venue
You agree that the laws of the State of California and the United States will apply to all matters relating to this Agreement, as they would to agreements made and entered into entirely in California by California residents, notwithstanding your actual place of residence. You agree that all lawsuits arising out of or relating to this Agreement shall be brought exclusively in the Federal or State courts located in the Northern District of California, San Francisco County, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.
General
This Agreement contains the complete and final statement of the understanding between you and the Company with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous negotiations, agreements or communications, whether written or oral, between you and the Company concerning the subject matter of this Agreement. If any provision of this Agreement is rendered by a court or governmental agency of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality or unenforceability shall not affect the remainder of this Agreement which shall remain in full force and effect and be enforced in accordance with its remaining terms. The waiver by the Company of a breach or default of any of the provisions of this Agreement by you shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of the Company to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by you. You agree that, regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to use of the Network or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are solely used for convenience and have no legal or contractual significance. All provisions of this Agreement that, by their nature, survive termination of this Agreement will survive termination including, without limitation, the Acceptance of Terms, Network Rules, Submissions, Links, Disclaimer of Warranties, Limitations on Liability, Indemnification, Allocation of Risk, Proprietary Rights, Choice of Law & Jurisdiction and Venue and General sections of this Agreement.
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