The Effective Date of these Terms of Use is June 8, 2009. www.simonandschuster.com/pulseit is intended for teenagers living in the United States and Canada (excluding Quebec).
IMPORTANT: THIS IS A LEGAL CONTRACT. IT IS VERY IMPORTANT THAT YOU (AND YOUR PARENTS IF YOU ARE NOT THE AGE OF MAJORITY IN YOUR STATE OF RESIDENCE) READ, UNDERSTAND AND AGREE TO THE FOLLOWING TERMS OF USE ("TOU") BEFORE YOU REGISTER ON THE SITE. IF YOU ARE NOT THE AGE OF MAJORITY, YOUR PARENTS MUST AGREE TO THESE TOU AND IF YOU DON'T UNDERSTAND ONE OR MORE OF THE TERMS BELOW, PLEASE ASK YOUR PARENTS TO EXPLAIN IT TO YOU.
These TOU only apply to the Simon and Schuster Pulse It program available at www.simonandschuster.com/pulseit which is operated by Simon & Schuster Digital, a division of Simon & Schuster, Inc. ("S&S," "we," "our," or "us"), or other interactive features or downloads available through the site that post these TOU (collectively, the "Site"). These TOU do not apply to any other web site or any offline activities by S&S (unless specifically stated). By accessing or using this Site, you agree to these TOU which constitute a legally binding contract between you (or your parents, as applicable) and S&S. If you do not agree with these TOU, you should not register as a member on the Site and leave the Site immediately.
The Site is intended for use only by teens residing in one (1) of the fifty (50) United States or D.C. and Canada (excluding Quebec) who are between the ages of fourteen (14) and eighteen (18) and who register on the Site as members of the Pulse It community (the "Community"). Please also carefully review this Site's Privacy Policy which governs our collection and use of information about you.
Table of Contents
1. Intellectual Property Ownership of Site Materials
2. Your License to Use Materials on Our Site
3. Information/Content You Submit
4. Acceptable Use Policy: Community Rules
5. Membership and Registration
6. Your Warranties
7. User Interactions and Disputes
8. Promotions
9. Third Party Links and Content
10. Linking Policy
11. No Unsolicited Manuscripts
12. Disclaimer of Warranties
13. Disclaimers/Limitation of Liability
14. Indemnification
15. Copyrights and other Intellectual Property and Related Complaints
16. Term and Termination
17. Location of Site and Territorial Restrictions
18. Governing Laws; Jurisdiction; Commencement of Actions
19. Miscellaneous
20. Entire Agreement, Termination and Modifications
1. INTELLECTUAL PROPERTY OWNERSHIP OF SITE MATERIALS
Unless otherwise explicitly specified, this Site and all materials that are included in or are otherwise a part of the Site (including past, present and future versions), including, without limitation, graphics, layout, text, instructions, images, books, periodicals, audio, videos, designs, advertising copy, compilations, and the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); the "look and feel" of the Site, the compilation, assembly and arrangement of the materials of the Site; and all other materials related to the Site (collectively, the "Materials") are owned, controlled or licensed by S&S, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of S&S, unless and except as is expressly provided in these TOU. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Site.
2. YOUR LICENSE TO USE MATERIALS ON OUR SITE
Subject to your strict compliance with these TOU, S&S grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, view, display, use and/or play a single copy of the Materials (excluding source and object code) on any single computer for your personal, non-commercial use only, provided that: (a) you keep intact all trademark, copyright and other proprietary notices contained in the Materials or any copy you may make of the Materials; (b) you do not use the Materials in a manner that suggests an association with any of our products, services or brands; (c) you make no modifications to the Materials; (d) with respect to any postings or other materials contributed by an author of an S&S book on the Site, you are strictly limited to viewing such postings and materials; (e) you do not allow or aid or abet any third party (whether or not for your benefit): (i) to copy or adapt the source or object code of any Site's software, HTML, JavaScript or other code; or (ii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Site creates to generate its web pages or any software or other products or processes accessible through the Site; and (f) you do not insert any code or product to manipulate the Materials in any way that affects any user's experience. The use of any Materials on any other web site or networked computer environment without S&S's express written consent is prohibited.
You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard search engine or activity or your use of a standard internet browser), nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these TOU or S&S.
3. INFORMATION/CONTENT YOU SUBMIT
The Site may provide you and others with the opportunity to participate in forums, blogs, message boards, social networking, social communities and other communication functionality and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials, including, without limitation, photographs, writings, computer graphics, testimonials, book and periodical reviews, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, "User Content") to S&S, the Site and other third parties.
Except as otherwise described in the Site's posted Privacy Policy, or other agreement on the Site at which you provide your User Content, you agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned. You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these TOU; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these TOU and grant S&S these licenses. Upon S&S's request, you will furnish S&S any documentation, substantiation or releases necessary to verify your compliance with these TOU. You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting or distributing any information, including, without limitation, User Content to S&S, the Site or other third parties.
You grant to S&S the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sublicense, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, formula or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that S&S is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or S&S, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without remuneration of any kind. You further perpetually and irrevocably grant S&S the unconditional right to use your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or remuneration to you. You also grant to S&S the right to sublicense and authorize others to exercise any of the rights granted to S&S under these TOU; and each such third party will be entitled to benefit from the rights and licenses granted to S&S under these TOU. You further authorize S&S to publish your User Content in a searchable format that may be accessed by users of the Site. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
You agree that S&S has no obligation to monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees' licensed rights to your User Content. You further acknowledge and agree that S&S will not have any obligation to, but may review, monitor, display, accept or exploit any User Content and S&S may, in its sole discretion, delete, move, re-format, edit, distribute, block, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that S&S reserves the right to treat User Content on the Site, or on certain portions of the Site, as content stored at the direction of users for which S&S will not exercise editorial control except to enforce the rights of third parties and the content restrictions set forth below in our Community Rules when notice of such violations are brought to S&S's attention. User Content posted may not be maintained on the Site by us for any period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You agree and understand that S&S is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
4. ACCEPTABLE USE POLICY: COMMUNITY RULES
As a member of the Community, you agree that these community rules ("Community Rules") are here to help you understand the conduct that is expected when you participate on the Site. Your participation in the Community is subject to all the TOU, including these Community Rules. Please follow these Community Rules when participating on the Site, including, without limitation, when you upload any User Content, send messages or other materials to other users, or comment, reply, and create forum discussions and blog posts on the Site:
You understand and acknowledge that S&S may from time to time monitor or review the Community. However, S&S has no obligation to monitor the content of the Community and assumes no responsibility for libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, illegality or inaccuracy contained in any information transmitted to or from any such locations on this Site. S&S reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, that in its sole discretion are objectionable or in violation of these Community Rules.
Community Policing: As part of the Community, we hope you enjoy your experience and are comfortable with interacting and viewing the Site. There may be Community tools in effect that allow all Community members to "flag" content that they deem inappropriate, offensive or that makes them uncomfortable (for example, if offered, the Community tools may include an "Inappropriate Flag" link with which a Community member can flag content as potentially offensive).
We reserve the right, in our sole discretion, to remove or disable content that is flagged with an "Inappropriate Flag" or any content that we find, in our sole discretion, violates these Community Rules or any other terms of these TOU, or that we otherwise find objectionable.
We reserve the right to disable or otherwise terminate the accounts of users that we determine to be in violation of these Community Rules or any other of the terms set forth in these TOU, or that post content which is repeatedly flagged [i.e., 3 or more times] with an "Inappropriate Flag."
5. MEMBERSHIP & REGISTRATION
In order to participate on the Site, you will have to become a registered member and create a unique personal profile ("Profile"). To qualify to become a registered member of the Site, you must be a resident of one (1) of the fifty (50) United States or D.C. and Canada (excluding Quebec) and between fourteen (14) and eighteen (18) years of age. Once S&S confirms that you are qualified to participate on the Site, you will be notified via e-mail that your account has been activated. As member of the Site, you will have a chance to participate in our monthly sweepstakes and contests. By logging onto the Site on a monthly basis, you will automatically be entered into our sweepstakes. Please review our Rules of the Road for information on our monthly sweepstakes. If you actively participate on our Site, you will have a chance to win free books through the three contests the Site runs for active members. The monthly contests provide members with three ways to be a Pulse It VIP. Please see our Rules of the Road for more information on our three monthly contests. Members cannot sell, transfer or assign your account. As noted above, the Site is for members fourteen (14) to eighteen (18) years old; once members turn nineteen (19) years of age, S&S may terminate your account with the Site.
If you meet these qualifications and wish to become a registered user of the Site, you must provide true, accurate, current and complete registration information about you as may be requested by any forms on the Site and, if such information changes, you must promptly update the relevant registration information, including on your Profile. If you register with us, you agree to accept responsibility for all activities that occur under your account, if any. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Site using your username in whole or in part. S&S reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability. You agree to notify us immediately of any breach of security or unauthorized use of your account.
Your Profile may not include any form of prohibited User Content, as outlined above in the Community Rules or elsewhere on the Site. Despite this prohibition, information, materials, products or services provided by other users (for instance, in their Profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these TOU, and we assume no responsibility or liability for this material. Profiles may only be set up by an authorized representative of the individual that is the subject of the Profile. We do not review Profiles to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profiles that may appear on the Site.
6. YOUR WARRANTIES
You represent and warrant that: (i) all information you provide to S&S is accurate and complete; and (ii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these TOU. You also agree that you will be responsible for obtaining and maintaining all Internet access services, computer hardware and other equipment needed for access to and use of the Site and you will be responsible for all charges related thereto.
7. USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others and in all other online activities.
8. PROMOTIONS
The Site may contain or offer contests, sweepstakes or other promotions, which may be governed by a separate set of rules that describe the contest, sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor's requirements of you in connection with the applicable contest, sweepstakes or promotion.
9. THIRD PARTY LINKS AND CONTENT
There may be links from the Site, or communications you receive from the Site, to third party web sites or our Site may include third party content that we do not control, maintain or endorse. Accessing those third party sites requires you to leave the Site. We do not control those third party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. S&S ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT.
10. LINKING POLICY
S&S grants you the revocable permission to link to the Site; provided, however, that your web site, or any third party web sites that link to the Site: (a) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (b) must not imply that S&S or the Site is endorsing or sponsoring it or its products, unless S&S has given its prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in S&S's sole opinion, harm S&S or its products or services; (d) must not use any S&S trademarks without the prior written permission from S&S; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in S&S's sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these TOU. By linking to the Site, you agree that you do and will continue to comply with the above linking requirements.
Notwithstanding anything to the contrary contained in these TOU, S&S reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
11. NO UNSOLICITED MANUSCRIPTS
While we are looking forward to receiving your materials when we specifically ask for them or invite you to post them, it is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, S&S does not accept unsolicited manuscripts or story ideas sent to it through its Site, and takes no responsibility for any manuscript or ideas so transmitted.
12. DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, S&S AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE "S&S PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO S&S OR VIA THE SITE. IN ADDITION, THE S&S PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE S&S PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE S&S PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE IS AT YOUR SOLE RISK. THE S&S PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE S&S PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION's LAW IS APPLICABLE TO THESE TOU.
BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
13. DISCLAIMERS/LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT S&S LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE SITE AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES WILL THE S&S PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITE; (B) THE MATERIALS; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE S&S PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITE's TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, MOBILE DEVICE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, 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, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE S&S PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE S&S PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE S&S PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN U.S. DOLLARS ($10.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF S&S'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE S&S PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE S&S PARTIES.
You assume total responsibility for establishing such procedures for data back up and virus checking as you consider necessary.
BY ACCESSING A SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
14. INDEMNIFICATION
You agree to defend, indemnify and hold the S&S Parties harmless from and against any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements and expenses, including attorneys' fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Site or activities in connection with the Site; (c) your breach or anticipatory breach of these TOU; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the S&S Parties' use of your information. You will cooperate as fully required by the S&S Parties in the defense of any claim. Notwithstanding the foregoing, the S&S Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. Further, the S&S Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the S&S Parties.
15. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY AND RELATED COMPLAINTS
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. S&S encourages you to report any content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), S&S has a designated agent for receiving notices of copyright infringement and S&S follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide S&S's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright 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; (c) 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; (d) information reasonably sufficient to permit us to contact the complaining party; (e) 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; and (f) 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.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
S&S's copyright agent for notice of claims of copyright infringement on or regarding the Site can be reached as follows:
Name: Tracy Woelfel
Mailing address: Simon & Schuster, Inc., 1230 Avenue of the Americas, New York, NY 10020
Phone number: 212-698-7094
E-mail address: infringments@simonandschuster.com
NOTE: This contact information is for inquiries regarding potential copyright infringement only.
For inquiries regarding content that you believe may otherwise violate your rights, please see below.
If you believe that any content on the Site contains content that violates your rights other than copyrights, please provide S&S at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) 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; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you. Please send your complaint regarding content on the Site to:
Name: Tracy Woelfel
Mailing address: Simon & Schuster, Inc., 1230 Avenue of the Americas, New York, NY 10020
Phone number: 212-698-7094
E-mail address: infringments@simonandschuster.com
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
S&S will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
16. TERM AND TERMINATION
S&S reserves the right to terminate your access to and use of the Site in its sole discretion, without notice and liability, including, without limitation, if S&S believes your conduct fails to conform with these TOU. Further, S&S reserves the right to terminate your account when you turn nineteen (19) years of age. S&S also reserves the right to investigate suspected violations of these TOU, including, without limitation, any violation arising from any e-mails you send to the Site or S&S. Any violation, or potential violation, of these TOU may be referred to law enforcement authorities.
Upon termination of your access to the Site, or upon demand from S&S, all rights granted to you under these TOU will cease immediately, and you agree that you will: (a) immediately discontinue use of the Site; and (b) destroy all materials obtained from the Site and all related documentation.
17. LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject S&S to any registration requirement within such jurisdiction or country. S&S controls and operates the Site from offices located in the State of New York, United States of America and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in any location outside of the United States. Anyone using or accessing the Site from other locations does so on their own initiative and are responsible for compliance with United States, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
Software related to or made available by this Site may be subject to United States export controls. Thus, no software from the Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
18. GOVERNING LAWS; JURISDICTION; COMMENCEMENT OF ACTIONS
THESE TOU AND THE INTERPRETATION OF THESE TOU WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THESE TOU MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK CITY, NEW YORK AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED NEW YORK CITY, NEW YORK FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
19. MISCELLANEOUS
The failure of S&S to act with respect to a breach of these TOU by you or others does not constitute a waiver and will not limit S&S's rights with respect to such breach or any subsequent breaches. No waiver by S&S of any of these TOU will be of any force or effect unless made in writing and signed by a duly authorized office of TOU. Neither the course of conduct between the parties nor trade practice will act to modify these TOU. S&S may assign its rights and duties under these TOU to any party at any time without any notice to you. These TOU may not be assigned by you without S&S's prior written consent. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these TOU will not be construed against S&S by virtue of having drafted them.
20. INFORMATION/CONTENT YOU SUBMIT
S&S reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any materials, information or content available on the Site, without limitation, in whole or in part, including the cessation of all activities associated with the Site, with or without notice. You agree that S&S will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any part thereof. S&S also reserves the right to charge for use of the Site, in whole or in part, and to change its fees from time to time in its discretion.
If any provision of these TOU is found to be unenforceable for any reason, then that provision will be deemed severable from these TOU and will not affect the validity and enforceability of any remaining provisions. S&S reserves the right to modify or add to these TOU at any time without prior notice ("Updated TOU"). You agree that we may notify you of the Updated TOU by posting it on this Site so that it is accessible via a link on the home page, and that your use of the Site after we have posted the Updated TOU (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated TOU. Therefore, you should review this TOU before using the Site. The Updated TOU will be effective as of the time of posting, or such later date as may be specified in the Updated TOU, and will apply to your use of the Site from that point forward.
Hold Harmless of Service Provider
Technology and hosting for aspects of this website are provided by KickApps Corporation, a Third Party Application Service Provider ("Service Provider"). However, "Pulse It" controls the content, membership and policy of this website, including those pages served by the Service Provider on behalf of this website. Notwithstanding anything to the contrary, by participating on this website you agree to indemnify and hold harmless the Service Provider on all matters related to your interaction with others using this website and participation with this website, including your representation that you are at least thirteen years old. As such, the Service Provider is a third party beneficiary to your agreement with this website; such agreement with this website is defined above.