To the greatest extent permitted by applicable law, the following additional legal terms shall apply: 15.1. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Deepmedia and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Deepmedia and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). The arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Deepmedia Users, and cannot be used to decide other disputes with other Users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Wilmington, Delaware or wherever Clause 14 above determines if you are a resident of the EEA, the United Kingdom, or Switzerland.
If any clause within this section is found to be invalid or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Deepmedia, or any employee, officer, director, or investor of Deepmedia, and to any claims asserted by any of them against you.
This Section shall survive any termination of your account or the Services.15.2. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS:
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS IS, AS AVAILABLE, AND WITH ALL FAULTS BASIS. THEREFORE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR PARENT, AFFILIATES, SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, COMPANY PARTIES), HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AS TO:
THE SERVICES (INCLUDING THE CONTENT AND THE USER-GENERATED CONTENT); THE FUNCTIONS, FEATURES, INCLUDING ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES, OR ANY OTHER ELEMENTS ON, OR MADE ACCESSIBLE THROUGH, THE SERVICES; ANY PRODUCTS, SERVICES, OR INSTRUCTIONS OFFERED OR REFERENCED AT OR LINKED THROUGH THE SERVICES; WHETHER THE SERVICES (AND THEIR CONTENT), OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE, ARE FREE FROM ANY HARMFUL COMPONENTS (INCLUDING VIRUSES, TROJAN HORSES, AND OTHER TECHNOLOGIES THAT COULD ADVERSELY IMPACT YOUR INTERNET DEVICE); THE SPECIFIC AVAILABILITY OF THE SERVICES, AND WHETHER ANY DEFECTS IN THE SERVICES WILL BE REPAIRED, OR WILL BE REPAIRED IN A PARTICULAR TIME FRAME; AND WHETHER YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15.3. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
THE SERVICES (INCLUDING THE CONTENT AND THE USER-GENERATED CONTENT AND ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES); YOUR USE OF OR INABILITY TO USE THE SERVICES, OR THE PERFORMANCE OF THE SERVICES; THE FAILURE OF A CHILD USER TO LEARN OR OTHERWISE BENEFIT EDUCATIONALLY FROM THEIR USE OF THE SERVICES; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS OR OTHER RIGHTS OWNERS; ANY ERRORS OR OMISSIONS IN THE SERVICES’ TECHNICAL OPERATION; OR ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, SOFTWARE, MODEM, OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE, OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING LOSSES OR DAMAGES IN THE FORM OF LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, INACCURACY OF RESULTS, OR EQUIPMENT FAILURE OR MALFUNCTION.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY EVEN IF ANY OF THE EVENTS OR CIRCUMSTANCES WERE FORESEEABLE AND EVEN IF COMPANY PARTIES WERE ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, REGARDLESS OF WHETHER YOU BRING AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR TORT (INCLUDING WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, FORCE MAJEURE, TELECOMMUNICATIONS FAILURE, OR DESTRUCTION OF THE SERVICES).
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, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT THE COMPANY PARTIES’ TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM THE COMPANY PARTIES’ OWN INTENTIONAL OR RECKLESS CONDUCT.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS EXCEED (I) THE AMOUNT PAID BY YOU TO US DURING THE PREVIOUS TWELVE MONTHS OR (II) $100, WHICHEVER IS GREATER, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY PARTIES FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY THE COMPANY PARTIES’ GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY THE COMPANY PARTIES’ FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEEPMEDIA AND YOU.15.4. Indemnity
To the maximum extent allowed by law, you agree to indemnify, defend and hold harmless Deepmedia and its officers, directors, employees and agents (the Indemnified Parties), from any claims or demand, including reasonable attorneys’ fees, made by any third party resulting from: (a) your breach or alleged breach of these Terms; (b) your use of the Services or activities in connection with the Services, including any specific functionalities of our products and/or services; (c) your User-Generated Content; (d) your violation of any law, rule or regulation; or (e) your violation of any third party rights. reserves the right to assume, at their sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Indemnified Parties in asserting any available defenses. You will not, in any event, settle any claim without our prior written consent. If any child you authorize to use or access the Services disaffirms any or all of these Terms, you agree to defend, indemnify and hold us harmless for any damages we suffer by the child’s disaffirmance.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold the Indemnified Parties harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.
15.5. Infringement Policy and Reporting Procedure
If you believe that any content appearing on any part of the Service has been copied in a way that constitutes copyright infringement under the Digital Millennium Copyright Act of 1998 (the DMCA) or any other regulation applicable within any of the countries the EEA, the United Kingdom, or Switzerland, please forward the following information to the Copyright Agent named below:
(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 (the complaining party);
(ii) identification of the copyright work(s) claimed to have been infringed;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material;
(iv) information reasonably sufficient to permit us to contact the complaining party;
(v) a statement that the complaining party (name, address, telephone number, and email address) 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; and
(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.Users Residing in the United States
In accordance with the DMCA, you can notify us of alleged copyright infringement by sending an email to email@example.com
or by postal mail at Deepmedia Inc.,16192 Coastal Hwy, Lewes, DE, USA 19958.
The DMCA provides that a person who knowingly materially misrepresents that material or an activity is infringing may be subject to liability. We may send the information in the notice from the complaining party to the person who provided the allegedly infringing material.Users Residing in the EEA, the United Kingdom, or Switzerland
In accordance with the DMCA, you can notify us of alleged copyright infringement by sending an email to firstname.lastname@example.org
or by postal mail at Deepmedia Inc.,16192 Coastal Hwy, Lewes, DE, USA 19958.15.6 Wireless Features & Communication
The Services may offer certain features and services, including any specific functionalities of our products and/or services that are available to you via your wireless Internet Device (collectively, Wireless Features). Your carrier may charge standard messaging, data, and other fees, which may appear on your wireless bill or be deducted from your prepaid balance. Your carrier may prohibit or restrict certain Wireless Features, and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties. If you have registered via the Services for Wireless Features, then you agree to notify us of any changes to your wireless number (including phone number) and update your Account to reflect the changes. 15.7. User Comments, Feedback, and Other Submissions
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, Comments), 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.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third party.
15.8. No Third-Party Beneficiaries
These Terms are not enforceable by or for the benefit of any third party, except where provided under applicable law.
15.9. General Provisions
When you communicate with us electronically, such as via a Services communication tool, you consent to receive
communications from us electronically. Please note that we will do our best to respond to your inquiry, but it may take us some time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.B. Notice.
Where Deepmedia requires that you provide an email address, you are responsible for providing Deepmedia with your most current email address. In the event that the last e-mail address you provided to Deepmedia is not valid, or for any reason is not capable of delivering to you any notices required/permitted by these Terms, Deepmedia's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Deepmedia at the following address: 16192 Coastal Hwy, Lewes, DE, USA 19958
. Such notice shall be deemed given when received by Deepmedia by letter delivered by nationally Deepmedia overnight delivery service or first-class postage prepaid mail at the above address.
C. Operation of Services; International Issues.
We control and operate the Services from the United States. If you use the Services from other locations, you are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply (e.g., any local education regulatory or data privacy laws). You and we disclaim any application of the Convention on Contracts for the International Sale of Goods.
D. Force Majeure.
Deepmedia shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemic, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
E. Exclusive Venue..
Any claim or dispute that between you and Deepmedia that arises out of or is related to the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Wilmington, Delaware, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non convenience with respect to venue and jurisdiction in the state and federal courts of Wilmington, Delaware.
If you are a resident of the EEA, the United Kingdom, or Switzerland, Clause 14 shall apply.
F. Timing of Claim.
You agree that except where otherwise provided under applicable law, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
G. Export Control.
You may not use, export, import, or transfer the Services, including the purchase of any products or service on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services or purchased any products or services on the Services, and any other applicable laws. In particular, but without limitation, the Services, including any products or services purchased on the Services, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services or purchasing products or services on the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services nor the products or services purchased on the Services for any purpose prohibited by U.S. law.
H. Severability; Interpretation.
If any provision of these Terms, or any Additional Terms, is for any reason deemed unenforceable by a court or arbitrator, you agree that every attempt will be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement will continue in full force and effect. You agree that these Terms, and Additional Terms, will not be construed against us because we drafted them.
We may assign our rights and obligations under these Terms, or any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms, and any Additional Terms, may not be assigned by you, and you may not delegate your duties under them.
J. No Waiver.
No waiver by us of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Deepmedia Inc.
In the event of any termination of these Terms, whether by you or the Company, the following Sections will continue in full force and effect: Section 8 (Content You Submit), including but not limited to the Company’s right to use Your Content; Section 9 (Services and Content Use Restrictions); Section 10 (Linking To and From Our Services); Section 13 (Governing Law/Jurisdiction); Section 14 (Arbitration); and Section 15 (Additional Legal Terms).
L. Entire Agreement.
These Terms constitute the entire agreement and understanding between you and Company concerning the subject matter of the Terms and supersedes all prior agreements and understandings of the parties with respect to that subject matter. These Terms may not be altered, supplemented, or amended by the use of any other document(s), unless otherwise agreed to in a written agreement signed by you and Company. To the extent that anything in or associated with the Services is in conflict or inconsistent with these Terms, these Terms shall take precedence.M. Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
If you are a resident of the EEA, the United Kingdom, or Switzerland, you may report complaints to the addresses, channels and authorities indicated along these Terms.