This document is BodyPress, Inc.’s (hereinafter “BodyPress Sites”) Terms of Service. This document is a contract between you and BodyPress Sites and is the governing agreement whenever you use BodyPress Sites websites, services or products (hereinafter collectively “services”). This agreement consists only of this written Terms of Service Agreement and no other separate written, electronic or oral communication. This agreement may be changed at any time by BodyPress Sites and continued use of BodyPress Sites’ services constitutes acceptance of any changes. BodyPress Sites’ services are only available to individuals who are at least 13 years old.
Acceptance of Agreement
Modifications to Agreement
BodyPress Sites reserves the right, at its sole discretion, to modify this Agreement at any time. Any modification of this Agreement will be posted to the BodyPress Sites main website. Notification will be made by email when possible, although not receiving and email is not grounds for nullification of the modified Agreement. You are solely responsible for reviewing any modifications to this Agreement. Modifications are effective as soon as they are posted and your continued use of any BodyPress Sites Services constitutes acceptance of any Modifications.
Age Restrictions and Use Eligibility
You must be at least thirteen (13) years of age and legally capable of entering into a Contract to use any BodyPress Sites Services.
Your BodyPress Sites Account and Site.
If you use BodyPress Sites Services to create an account and/or website, you are solely responsible for ensuring the security of your account and/or site. You are fully responsible for any and all activities that occur under your account and properly securing your account information and password(s). You must notify BodyPress Sites immediately of any actual or suspected loss, theft or unauthorized use of your Account or Account Password. BodyPress Sites will provide basic security as a courtesy to all users, but BodyPress Sites does not guarantee the security or take on any liability for the security of your site. You must provide BodyPress Sites with an accurate and current e-mail address and update any changes to your e-mail address. Any failure to do so may result in suspension of your Account. You may not use your BodyPress Sites for any illegal purpose. Acceptance of this Agreement by using BodyPress Sites Services expressly waives any liability of BodyPress Sites for any action or omission by you or done using your account or account password(s). BodyPres Sites is not liable for any damages of any kind incurred as a result of your actions or omissions.
Responsibility of Users/Contributors.
If you operate a site or use any BodyPress Sites Services, you are entirely responsible for the content of, and any harm resulting from your use of any BodyPress Sites Services. Content includes but is not limited to text, graphics, audio, video, or other media file, software or code of any type. By using any BodyPress Sites Services you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly- generated, and does not contain the unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing or other fraud), or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic or vulgar, does not contain threats or incite violence, or contain racist, sexist, age discriminatory, or sexual orientation discriminatory content, and does not violate the privacy or publicity rights of any third party;
- your blog is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your blog is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your blog’s URL or name is not the name of a person other than yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by BodyPress Sites or otherwise.
By submitting Content to BodyPress Sites for inclusion on your Website, you grant BodyPress Sites a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your site.
If you delete Content, BodyPress Sites will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable
Without limiting any of those representations or warranties, BodyPress Sites has the right (though not the obligation) to, in BodyPress Sites’ sole discretion (i) refuse or remove any content that, in BodyPress Sites’ reasonable opinion, violates any BodyPress Sites policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in BodyPress Sites’ sole discretion. BodyPress Sites will have no obligation to provide a refund of any amounts previously paid.
Payment and Renewal
By using any BodyPress Sites services, you agree to pay to BodyPress Sites the subscription fees required for using our services. Subscription terms and fees are charged on a monthly or annual basis, depending upon which plan you select. Discounts may be offered for the annual plan but all fees are expressly non-refundable.
All subscriptions through BodyPress Sites are automatically renewed unless you cancel the subscription. At the end of the applicable subscription period, if you have not notified BodyPress Sites of your intent to cancel, then you expressly authorize us to automatically collect the then-applicable annual or monthly subscription fee. If you have elected to upgrade your subscription during the time you have used BodyPress Sites Services, then the upgraded services fee will be automatically renewed. Although any subscription service can be cancelled at any time, no fees already billed will be refunded. Once fees have been tendered, services will be available for the applicable monthly or annual subscription period. Upon notice of cancellation, services will cease at the end of the applicable monthly or annual subscription period. For cancellation to be effective it must be completed through the BodyPress Sites website at http://www.bodypresssites.com/cancel/ or by cancelling through your PayPal account. No other method for cancellation is acceptable.
Responsibility of Website Visitors
BodyPress Sites is not able to review or secure all the content and material posted to the Website and therefore is not responsible for that content and material. By operating the BodyPress Sites Services, BodyPress Sites does not warrant or represent that it endorses content or material posted on any BodyPress Site. Each visitor is responsible for taking precautions to protect themselves and their computers from any potentially malicious content. Websites managed by, owned by, or affiliated with BodyPress Sites may contain objectionable, offensive, indecent, inaccurate or malicious content. BodyPress Sites does not review content hosted on other websites that is linked to on a BodyPress Sites website. By linking to another site, BodyPress Sites does not warrant, represent, or endorse any linked content; linked content may contain objectionable, offensive, indecent, inaccurate or malicious content. BodyPress Sites disclaims any liability or responsibility for any harm resulting from the use of any of its services or websites or from any downloading of content found therein.
Copyright Infringement and DMCA Policy
As a user of any BodyPress Sites Services, you warrant and represent that any content you post or provide is content you have the legal right to post, use and/or distribute. BodyPress Sites is not liable for any copyright or other intellectual property infringement by its users. As a visitor, if you believe that any material located on or linked to by BodyPress Sites violates your intellectual property rights, please notify us immediately. In accordance with the Digital Millennium Copyright Act (“DMCA”), BodyPress Sites will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. BodyPress Sites will terminate a visitor’s access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of BodyPress Sites or others. In the case of such termination, BodyPress Sites will have no obligation to provide a refund of any amounts previously paid to BodyPress Sites.
This Agreement does not transfer from BodyPress Sites to you any BodyPress Sites or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with BodyPress Sites. BodyPress Sites, BodyPressSites.com, the BodyPressSites.com logo, and all other trademarks, service marks, graphics and logos used in connection with BodyPressSites.com, or the Website are trademarks or registered trademarks of BodyPress Sites or BodyPress Sites’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any BodyPress Sites or third-party trademarks.
BodyPress Sites reserves the right to display attribution links such as ‘Blog at BodyPressSites.com,’ theme author, and font attribution in your blog footer or toolbar. Footer credits and the BodyPressSites.com toolbar may not be removed regardless of upgrades purchased.
If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”), including their Registration Rights and Responsibilities.
BodyPress Sites may terminate your access to all or any BodyPress Sites Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your BodyPressSites.com account (if you have one), you may simply discontinue using the Website. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Warranty Disclaimer; Services Available on an “AS-IS” Basis
Your access to and use of any BodyPress Sites Services or Content is at your own risk. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, BODYPRESS SITES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BodyPress Sites makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. No advice or information, whether oral or written, obtained from BodyPress Sites or through the Services, will create any warranty not expressly made herein.
14. Release From Liability
You release, to the fullest extent permitted by law, BodyPress Sites, its directors, officers, shareholders, employees, representatives, consultants, agents, suppliers, and/or distributors from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following:
- Disputes between Subscribers, including those between you and other Subscribers
- Third party sites and services, including content found on such sites and services.
- Disputes concerning any use of or action taken using your Account by you or a third party.
- Claims relating to the unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content.
If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BODYPRESS SITES, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF: PROFITS, REVENUE, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR SUBSCRIBER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT BODYPRESS SITES HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF BODYPRESS SITES AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (US$50.00) OR THE AMOUNT YOU PAID US TO USE THE APPLICABLE SERVICE(S).
16. General Representation and Warranty
You represent and warrant that:
- your use of any BodyPress Sites Services will not infringe or misappropriate the intellectual property rights of any third party.
You agree to indemnify and hold harmless BodyPress Sites, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.
This Agreement constitutes the entire agreement between BodyPress Sites and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of BodyPress Sites, or by the posting by BodyPress Sites of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Santa Barbara County, California. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Santa Barbara, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; BodyPress Sites may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.