Myrtle Potter Media
PLEASE READ THIS CONTRACT CAREFULLY. Myrtle Potter Media, Inc. (“Myrtle Potter Media”) is proud to provide you with access to its website and online services (collectively, the “Website”). This Terms of Service (“TOS” or “Agreement”) governs your use of the Website. By loading or using the Website, you agree to be bound by the terms of this Agreement.
1. Grant of a Limited License to use the Website. Subject to your agreement to and continuing compliance with this Agreement, you may use the Website solely for your own personal, non-commercial purposes by accessing the Website either directly at www.myrtlepotter.com. You may not use or access the Website for any other purpose or in connection with any other software or service. The license granted herein is limited, non-exclusive, revocable, non-transferable, confers no title or ownership in the Website, and should not be construed as a sale of any rights to the Website. All right, title and interest in and to the Website and any and all copies thereof are owned by Myrtle Potter Media or its licensors.
2. Changes to Agreement and Website. Myrtle Potter Media may update this Agreement at its sole discretion. You agree that you will periodically check www.myrtlepotter.com for updates to this Agreement, and that your continued access to or use of the Website after we have posted a revised version of the TOS or notified you of changes via email will constitute your acceptance of any changes. If you do not agree to a revised TOS, or cannot comply with the then-current TOS at any time, you must immediately stop using the Website. Myrtle Potter Media may change, modify, suspend, or discontinue any aspect of the Website at any time. Myrtle Potter Media may also impose limits on certain features or restrict your access to parts or all of the Website without notice or liability. Changes to the TOS will not be applied retroactively.
3. Proprietary Rights. The Website and the content therein are the sole and exclusive property of Myrtle Potter Media and/or its licensors. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Website other than as expressly authorized by Myrtle Potter Media in writing. You hereby acknowledge and agree that, as between Myrtle Potter Media and you, all right, title, and interest in and to the Website and all content displayed therein, including without limitation any patent rights, patents, business methods, copyrights, trademarks, trade secrets, inventions, know-how, and all other intellectual property rights pertaining thereto, shall be owned exclusively by Myrtle Potter Media. You agree to include, and not remove or alter, Myrtle Potter Media’s trademark, copyright or other proprietary rights notices, on all Myrtle Potter Media material. You agree that any and all goodwill that arises in connection with your use of Myrtle Potter Media’s trademarks inures exclusively to Myrtle Potter Media, and you agree not to challenge Myrtle Potter Media’s ownership or control of any Myrtle Potter Media trademarks, nor use or adopt any trademarks that might be confusingly similar to such Myrtle Potter Media trademarks.
4. Ownership. You understand and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Website, including without limitation the Myrtle Potter Media account registered to you (the “Account”).
5. Account Suspension/Deletion. MYRTLE POTTER MEDIA MAY SUSPEND, TERMINATE, MODIFY, OR DELETE THE ACCOUNT AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
6. Financial Transactions. You acknowledge and agree that Myrtle Potter Media is authorized, but not required, to act on payment instructions received from anyone using the Account. You authorize Myrtle Potter Media to (a) initiate debits or charges against your financial account or credit card periodically for the amount then due for purchases made; and (b) initiate any other debits or charges authorized by you or anyone using the Account. All payments must be made via payment methods made available by Myrtle Potter Media.
7. No Scraping. You agree that you will not use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather content or reproduce or circumvent the navigational structure or content of the Website without Myrtle Potter Media’s express prior written consent.
8. Age. You represent that you are at least 13 years of age, and that if you are between the ages of 13 and 18, your legal guardian has reviewed and agrees to this TOS on your behalf.
10. No Medical/Legal Advice. The information provided by Myrtle Potter Media on this Website is for general informational purposes. It is not medical or legal advice and is not a substitute for obtaining up-to-date advice from a qualified professional. Always consult with your doctor for appropriate examinations, treatment, testing, and care recommendations. Do not rely on information on this Website as a tool for self-diagnosis. If you have questions about any law, regulation, requirement or contractual provision referenced on this Website, you should contact your own legal counsel.
11. Remedies. You acknowledge that Myrtle Potter Media may suffer irreparable damage if you breach any of the provisions governing ownership, the license granted or license limitations. You therefore agree that if you breach any of these provisions, in addition to damages and reasonable attorneys’ fees, Myrtle Potter Media shall be entitled to enjoin such breach and to obtain specific performance of such provisions in any court of competent jurisdiction.
12. DISCLAIMER OF WARRANTIES. THE WEBSITE IS MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGMMENT, UNINTERRUPTED USE AND AVAILABILITY.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL MYRTLE POTTER MEDIA, ITS PARENT, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE WEBSITE OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR GOODWILL, DISRUPTION OF SERVICE OR CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL MYRTLE POTTER MEDIA, ITS PARENT, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE WEBSITE. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event shall Myrtle Potter Media’s aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you to Myrtle Potter Media during the six (6) months immediately prior to the time such claim arose.
14. INDEMNIFICATION. YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS MYRTLE POTTER MEDIA, ITS PARENT, SUBSIDIARIES AND AFFILIATES, FROM AND AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, LOSS OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED AS A RESULT OF, ARISING FROM, OR RELATING TO YOUR USE OF THE WEBSITE.
15. User Content. “User Content” means any communications, images, sounds, and all the material and information that you or anyone using the Account contributes through the Website. You hereby grant Myrtle Potter Media a perpetual, irrevocable, worldwide, paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such User Content as well as all modified and derivative works thereof. You hereby represent and warrant that you have, and have the documentation to establish, all necessary rights to grant the license referenced in the preceding sentence. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.
16. Notice of Claims for Copyright Infringement; Copyright Policy. If you are a copyright owner or agent thereof and believe that content posted on the Website by one of our users infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) the URL of the location on our Website containing the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our Copyright Agent can be reached by mail at: 1275 Lincoln Avenue #7, San Jose, CA 95125, by phone at 408-993-1614, by fax at 408-993-1602, or by email at info@MyrtlePotter.com.
17. Termination. This Agreement is effective until terminated. You may terminate this Agreement by terminating the Account. You acknowledge and agree that you are not entitled to any refund for any amounts paid in connection with the Account prior to termination of this Agreement. Myrtle Potter Media may terminate this Agreement with or without notice by deactivating the Account. All Sections of this Agreement that by their nature should survive termination will survive, including without limitation Sections 4, 7, 10-15, 19 and 20.
18. Dispute Resolution and Governing Law.
a. Binding Arbitration. Any dispute, controversy or claim related to this Agreement (“Dispute”) (except those Disputes expressly excluded below) that cannot be resolved through information negotiations shall be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available that the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Myrtle Potter Media will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Myrtle Potter Media may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
b. Restrictions. You and Myrtle Potter Media agree that any arbitration shall be limited to the Dispute between Myrtle Potter Media and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
c. Exceptions. You and Myrtle Potter Media agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Myrtle Potter Media’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft or unauthorized use; and (3) any claim for injunctive relief.
d. Location. Arbitration shall be initiated in San Francisco, California, United States of America subject to the allowance for remote participation set forth above. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction in San Francisco, California, United States of America, and you and Myrtle Potter Media agree to submit to the personal jurisdiction of that court.
e. Governing Law. Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Those who choose to access the Website from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
f. Severability. You and Myrtle Potter Media agree that if any portion Section 19 is found illegal or unenforceable (except any portion of 19(c)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 19(c) is found to be illegal or unenforceable then neither you nor Myrtle Potter Media will elect to arbitrate any Dispute falling within that portion of Section 19(c) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within San Francisco, California, United States of America, and you and Myrtle Potter Media agree to submit to the personal jurisdiction of that court.
19. Miscellaneous. The terms set forth in this Agreement, including the Disclaimer of Warranties, Limitation of Liability and Indemnification provisions are fundamental elements of the basis of the agreement between Myrtle Potter Media and you. Myrtle Potter Media would not be able to provide the Website on an economic basis without such limitations. Such Disclaimer of Warranties, Limitation of Liability and Indemnification provisions inure to the benefit of Myrtle Potter Media’s licensors, successors and assigns. You agree that you are not considered, and shall not represent yourself as, an agent, employee, joint venturer, or partner of Myrtle Potter Media. You may not assign this Agreement, in whole or in part, without Myrtle Potter Media’s prior written consent and any attempted assignment in violation of this provision shall be null and void. No waiver of any default, condition or breach of this Agreement shall constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from the Agreement, but such severance shall have no effect on the enforceability of the remaining provisions of the Agreement. This Agreement, incorporating all the applicable documents referenced herein, represents the entire agreement between you and Myrtle Potter Media with respect to the Website and supersedes all prior agreements between you and Myrtle Potter Media pertaining to the Website. In no event shall Myrtle Potter Media be liable for any failure of performance resulting from causes beyond the reasonable control of Myrtle Potter Media, including without limitation: acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials. This Agreement may be amended only by a writing executed by both parties.