Octavian Media LLC
These TOU apply to the web site available at http://www.octavianreport.com, which is operated by Octavian Media LLC (“OCTAVIAN,” “we,” “us” or “our”), and to interactive features, downloads, applications and widgets that post a link to these TOU, regardless of whether accessed via computer, mobile device or otherwise (collectively, the “Site”).
By accessing or using this Site, you agree to these TOU which constitute a legally binding contract between you and OCTAVIAN. If you do not agree with these TOU, you should not register as a member on the Site and should leave the Site immediately.
Table of Contents
- Intellectual Property Ownership of Site Materials
- Your License to Use Materials on Our Site
- Information/Content You Submit
- Acceptable Use Policy: Community Rules
- Membership & Registration
- Widgets and Mobile Services
- Your Warranties
- User Interactions and Disputes
- Copyrights and Other Intellectual Property and Related Complaints
- Third Party Links and Content
- Linking Policy
- No Unsolicited Manuscripts
- Disclaimer of Warranties
- Disclaimers/Limitation of Liability
- Term and Termination
- Location of Site and Territorial Restrictions
- Governing Laws; Jurisdiction; Commencement of Actions
- Arbitration; Waiver of Class Actions
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 present and future versions), including, without limitation, graphics, layout, text, instructions, images, books, periodicals, audio, videos, widgets, 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 OCTAVIAN, 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 OCTAVIAN, 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
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 OCTAVIAN.
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, social features such as following users, authors, books, or topics, creating book lists, photographs, videos, writings, computer graphics, testimonials, book and periodical reviews, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, “User Content”) to OCTAVIAN, the Site and other third parties.
Except as otherwise provided in this TOU, you or the owner of any content that you post to our Services retain ownership of all rights, title, and interests in that content, provided, however, that by posting content on a Service, you grant us and our assigns, agents, and licensees the irrevocable, royalty free, perpetual, worldwide right and license to use, reproduce, modify, display, remix, perform, distribute, redistribute, adapt, promote, create derivative works, and syndicate this content in any medium and through any form of technology or distribution. We own all rights, title, and interests in any compilation, collective work or other derivative work created by us using or incorporating your content (but not your original content). 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 OCTAVIAN these licenses. Upon OCTAVIAN’s request, you will furnish OCTAVIAN 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 OCTAVIAN, the Site or other third parties.
You grant to OCTAVIAN 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, syndicate, 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 OCTAVIAN is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or OCTAVIAN, 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 OCTAVIAN 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 OCTAVIAN the right to sublicense and authorize others to exercise any of the rights granted to OCTAVIAN under these TOU; and each such third party will be entitled to benefit from the rights and licenses granted to OCTAVIAN under these TOU. You further authorize OCTAVIAN to publish your User Content in a searchable format that may be accessed by users of the Site and other websites. 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. If you sign in to OCTAVIAN through another web service or widget provided by a third party, such as Facebook or Twitter, your User Content posted on OCTAVIAN may appear on those third party sites and other sites with whom you or they have access and share content.
You agree that OCTAVIAN 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 OCTAVIAN may review, monitor, display, accept or exploit any User Content, and OCTAVIAN 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 to you. OCTAVIAN 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 OCTAVIAN 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 OCTAVIAN’s attention. We may not maintain user Content posted on the Site for any particular 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 understand that OCTAVIAN 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 participant on the Site, you become a member of the Octavian community and 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 participate in discussions on the Site:
User Content must be yours. All User Content must be original with you, not copied from someone else’s work, and you must have the right to upload, distribute or embed (as applicable) the User Content on the Site and elsewhere. You may choose to upload pictures of yourself in your Profile. If you choose to upload photos, videos or other content that features another person, do so with that person’s express permission to submit it.
Though nudity is natural, not everyone wants to see it. The same goes for hateful things, spam, and irrelevant photos. So steer away from naked people, meanness, grossness, inappropriateness and anything else that you wouldn’t want to see when you’re exploring.
Don’t upload, post or distribute third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
Do we hear music? Your User Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
Keep it relevant. Your User Content should relate to the content on the Site and should be intended to add to the discussion and community on the Site — it should not include irrelevant topics or postings.
Please follow codes of social decency. Express yourself with non-offensive individual self–expression. Be respectful of others’ opinions and comments so we can continue to build a Community for everyone to enjoy. If you think your User Content might offend someone, chances are it probably will and doesn’t belong on the Community. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, religion, gender, sexual orientation or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
Do not use the Community for commercial purposes. Your User Content may not advertise or promote a product or service. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
Do not upload, post or distribute User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If you do upload, post or otherwise distribute User Content that promotes illegal conduct or is in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
No violence. Your User Content may not promote violence or describe how to perform a violent act.
Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company by uploading, posting or distributing User Content that you know or suspect is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
Others are watching. We hope that you will use the Community to exchange information and User Content and have discussions with other members. Please remember that the Community is a public forum and User Content, including, without limitation, your photograph, username, bio and interests that you post on the Community will be accessible and viewable by anyone on the Internet, including those who have not registered as Community members. Think carefully about the information you choose to post.
Don’t share other people’s personal information. Your User Content should not reveal another person’s address, phone number, email address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is personal in nature.
Don’t damage the Site or anyone’s computers. User Content may not contain, and you are prohibited from uploading viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
You understand and acknowledge that OCTAVIAN may from time to time monitor or review the Community, provided, however, that OCTAVIAN 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. OCTAVIAN 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 flagged with an “Inappropriate Flag.”
5. MEMBERSHIP & REGISTRATION
In order to participate actively on the Site, you will have to become a registered member or authenticate your account with a third party, such as Facebook or Twitter, and create a unique personal profile (“Profile”). When you become a registered member of the Site, you agree only to provide true, accurate, current and complete registration information and, if such information changes, you will 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. OCTAVIAN 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 [Link] 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. We do not review Profiles to determine if an appropriate party created them, and we are not responsible for any unauthorized Profiles that may appear on the Site.
6. WIDGETS AND MOBILE SERVICES
NOTICE TO THIRD PARTY SITES: Any of our Materials made available in connection with your site, or otherwise, by our Widgets, third party widgets or otherwise is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Materials upon notice.
b) MOBILE SERVICES We currently provide our mobile services without charge, but please be aware that your carrier’s normal rates and fees, such as text messaging fees, will still apply.
7. YOUR WARRANTIES
You represent and warrant that: (i) all information you provide to OCTAVIAN 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.
The Site contains links to products or services that you can purchase from third party merchants. You agree that OCTAVIAN’s and said merchants’ sole and exclusive maximum liability arising from any product sold via access to the Site shall be the price of the product ordered.
OCTAVIAN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO PRODUCTS LINKED TO BY THE SITE AND/OR SOLD VIA ACCESS TO THE SITE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL OCTAVIAN, ITS PARENT COMPANIES AND AFFILIATED ENTITIES OR THE DIRECTORS, OFFICERS, EMPLOYEES OR OTHER REPRESENTATIVES OF EACH OF THEM BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES RELATED TO ANY PRODUCT SOLD THROUGH OR IN CONNECTION WITH THIS SITE.
In the event a product is listed at an incorrect price or with incorrect information, the merchant offering such product shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. Said merchant shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged.
Your receipt of an electronic or other form of order confirmation does not signify OCTAVIAN’s or said merchant’s acceptance of your order, nor does it constitute confirmation of said merchant’s offer to sell. Merchants operating via Octavian reserve the right at any time after receipt of your order to accept or decline your order for any reason. Each such merchant reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. A merchant may require additional verifications or information before accepting any order. A merchant may automatically charge and withhold the applicable sales tax for orders. Otherwise, you are solely responsible for all sales taxes, or other taxes, on orders shipped to you.
9. 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.
10. 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. OCTAVIAN encourages you to report any content on the Site that you believe infringes your rights. Only the owner of the intellectual property 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”), OCTAVIAN has a designated agent for receiving notices of copyright infringement and OCTAVIAN 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 OCTAVIAN’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.
We reserve the right to terminate the accounts of users whom we deem in our sole discretion to be infringers.
OCTAVIAN will endeavor to 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.
OCTAVIAN’s copyright agent for notice of claims of copyright infringement on or regarding the Site can be reached as follows:
Name: Copyright Administrator
Mailing address: Octavian Media LLC
c/o Miller Korzenik Sommers Rayman LLP
488 Madison Avenue
New York, NY 10022-5702
Phone number: 212-224-9510
E-mail address: email@example.com
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.
12. THIRD PARTY LINKS AND CONTENT
There may be links from the Site, or communications you receive from the Site, including, without limitation, from advertisers or sponsors, 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 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.
13. LINKING POLICY
OCTAVIAN 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 without OCTAVIAN’s express written consent; (b) must not imply that OCTAVIAN or the Site is endorsing or sponsoring it or its products, unless OCTAVIAN has given its prior written consent; (c) must not present false information about, or otherwise, in OCTAVIAN’s sole opinion, harm OCTAVIAN or its products or services; (d) must not use any OCTAVIAN trademarks without the prior written permission from OCTAVIAN; (e) must not contain content that in OCTAVIAN’S sole opinion could be construed as distasteful, offensive or controversial or otherwise objectionable; 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 are now and will continue to be in compliance with OCTAVIAN’s linking requirements.
Notwithstanding anything to the contrary contained in these TOU, OCTAVIAN 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.
14. 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, OCTAVIAN does not accept unsolicited manuscripts or story ideas sent to it through its Site, and takes no responsibility for any materials so transmitted.
15. DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OCTAVIAN AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “OCTAVIAN 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 WIDGETS AND OTHER 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 OCTAVIAN OR VIA THE SITE.
IN ADDITION, THE OCTAVIAN 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 OCTAVIAN 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 OCTAVIAN 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 OCTAVIAN PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE OCTAVIAN 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.
16. DISCLAIMERS/LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT OCTAVIAN LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE SITE AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES WILL THE OCTAVIAN 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 WIDGETS AND OTHER 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 OCTAVIAN 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; AND/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 OCTAVIAN 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, ELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE.
IN NO EVENT WILL THE OCTAVIAN 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 OCTAVIAN PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED U.S. $10.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OCTAVIAN’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 OCTAVIAN 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 OCTAVIAN 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.”
You agree to defend, indemnify and hold the OCTAVIAN Parties harmless from and against any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements and expenses, including attorneys’ costs and 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; and/or (g) the OCTAVIAN Parties’ use of your information. You will cooperate as fully required by the OCTAVIAN Parties in the defense of any claim. Notwithstanding the foregoing, the OCTAVIAN Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action that are brought against them under the terms and provisions of this Section. Further, the OCTAVIAN 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 OCTAVIAN Parties.
Hold Harmless of Service Provider
A third-party service provider (the “Service Provider”) may provide the technology and hosting for aspects of this Site. Anything in the foregoing to the contrary not withstanding, by participating on this Site you agree to indemnify and hold harmless the Service Provider on all matters related to your interaction with others using this Site and participation with this Site. As such, the Service Provider is a third-party beneficiary to your agreement with these TOU.
18. TERM AND TERMINATION
OCTAVIAN 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 OCTAVIAN believes your conduct fails to conform with these TOU. OCTAVIAN also reserves the right to investigate suspected violations of these TOU and 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 OCTAVIAN, 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.
19. LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
The Site is intended for U.S. residents. 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 OCTAVIAN to any registration requirement within such jurisdiction or country. OCTAVIAN 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 his or her own initiative and is 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 to any person, geographic area, or jurisdiction, at any time and in our sole discretion.
Special Provisions Applicable to Users Outside the United States: We strive to create a global community with consistent standards for everyone, but we also strive to respect local laws. If you use the Site and reside out outside the United States, by using the Site you consent to having your personal data transferred to and processed in the United States.
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.
20. 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 YOU 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 SHALL BE IN THE APPLICABLE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NY. YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE APPLICABLE FEDERAL AND STATE COURTS LOCATED IN NEW YORK, NY FOR ANY SUCH LEGAL PROCEEDING.
YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE SITE MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR ELSE YOU AGREE YOU HAVE WAIVED ANY SUCH CLAIM.
21. ARBITRATION; WAIVER OF CLASS ACTIONS
By your use of the Site, you agree that any dispute or claim arising out of or in connection with any provision of this TOU or your use of the Site will be finally settled by binding arbitration in New York, NY in accordance with the rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision. Any claim or dispute between the parties shall be brought in a party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
The failure of OCTAVIAN to act with respect to a breach of these TOU by you or others does not constitute a waiver and will not limit OCTAVIAN’s rights with respect to such breach or any subsequent breaches. No waiver by OCTAVIAN 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. OCTAVIAN may assign its rights and duties under these TOU to any party at any time without any notice to you.
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. OCTAVIAN 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. **