earfl Usage Agreement
Last updated: November 15, 2007
BY REGISTERING FOR AND USING THE SITE, YOU CERTIFY THAT (1) YOU ARE AT LEAST 13 YEARS OLD; (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND YOURSELF OR THE COMPANY YOU REPRESENT; (3) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. This Participation Agreement (the "Agreement") is between you and earfl, Inc (as defined below) and governs your and earfl's respective rights and obligations with respect to your requesting and/or providing content on or through the Site (as defined below).
For purposes of this Agreement, (a) "earfl ", "Trudat", "we", "us" or "our" means earfl, Inc. a Delaware Corporation, (b) "Site" means the earfl web sites located at www.earfl.com, www.trudat.com, and any application provided by earfl to or via a third party website, (c) "Content" means any text, audio, image including photos or video that you provide to the Site, (d) "User" means you, if you use the Site, (e) "earfl Account" means any account that you have established with a website owned or controlled by earfl or its Affiliates and any successor or replacement websites.
This Agreement consists of the terms and conditions set forth in this document together with all applicable policies, procedures and/or guidelines that appear on the Site from time to time (collectively, the "Policies" which are hereby incorporated by this reference into, and made part of, this Agreement). earfl reserves the right to change any of the terms and conditions contained in this Agreement and/or any Policies governing the Site, at any time, in its sole discretion. Any changes will be effective upon posting of the Agreement or Policies on the Site and may be made without any other notice of any kind. You are at all times responsible for reading and understanding each version of this Agreement and the Policies. YOUR CONTINUED USE OF THE SITE FOLLOWING EARFL'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT (INCLUDING TO ANY OF THE POLICIES INCORPORATED HEREIN), DO NOT CONTINUE TO USE THE SITE.
Registration.
Registration. When you register with the Site, you will be asked to provide us with, at a minimum, your name, your mobile phone number and your email address. You agree to provide us with true and accurate information, and to update that information to the extent it changes in any way. When registering or updating your information, you will not impersonate any person or use a name that you are not legally authorized to use.
Passwords and Account Use. You are solely responsible for maintaining the secrecy and security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on the Site. If your password is compromised, you must change your password.
earfl's Role. earfl provides a venue for third-party Users to create and share content. Except when using the Site as a User as provided in Section 5, earfl and its Affiliates are not involved in the creation or use of Content by Users. As a result, we have no control over the quality, safety or legality of the Content. We are not responsible for the actions of any User. We do not conduct any screening or other verification with respect to Users, nor do we provide any recommendations. As a User, you use the Site at your own risk.
-
Your Use of the Site.
Users. Users may create Content on the site. You hereby assign or exclusively grant (without the right to any compensation) all right, title and interest, including all intellectual property rights, to such work product to earfl. You specifically acknowledge and agree to that you will not use robots, scripts or other automated methods to create Content and you are responsible for, and have and will, comply with all applicable laws.
Content Generally. As a User, you may not create or share any Content that violates applicable law or is prohibited by the Policies. Notwithstanding any provision of this Agreement, earfl will have the right, in its sole discretion, to determine the content, appearance, design, functionality and all other aspects of the Site (including the right to re-design, modify, remove and alter the content, appearance, design, navigation, functionality, and other aspects of the Site and/or any page thereof and any element, aspect, portion or feature thereof, from time to time).
Information and Feedback. You must supply accurate and complete information for all Content in accordance with our data requirements, as may be designated by us from time to time, including in the Policies. You recognize and agree that earfl will implement mechanisms allowing us and others to track your Content and rate your performance as a User, and earfl reserves the right to collect feedback regarding your performance and to post such feedback on the Site. You may not take any actions that may undermine the integrity of the feedback system. You agree that submission of any information, feedback, Content, data or other materials (collectively, "Materials") is at your own risk, and that none of earfl, its Affiliates, or Users has any obligations (including without limitation obligations of confidentiality) with respect to such Materials. You represent and warrant that you have all rights necessary to submit the Materials. You hereby grant to earfl and its Affiliates a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Materials, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site. For avoidance of doubt, if you are a Requester, if you create any tests, specifications, criteria lists or other programs for use on the Site to evaluate or otherwise select Users they will be considered Materials for purposes of this Agreement and may be used and/or referenced by us or other Requesters and Users pursuant to the license granted above.
Customer Service. earfl will be responsible for and will have sole discretion regarding all customer service issues relating to use of the Site and its features.
-
earfl Participation. earfl and/or its Affiliates may use the Site as a User from time to time.
-
Compliance with Laws.
Compliance with Laws; The Site may be used only for lawful purposes and in a lawful manner. You may not use the Site in any manner that violates any applicable law or governmental regulation. You agree to comply with all applicable laws, statutes, and regulations of any jurisdiction in which you request or perform Services.
Investigation. earfl has the right, but not the obligation, to monitor any activity, Content and Materials associated with the Site. earfl may investigate any reported violation of its Policies or complaints and take any action that it deems appropriate.
-
No Warranties.
THE SITE AND THE SITE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EARFL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT;
THAT THE SITE OR THE SITE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY;
-
General Release.
BECAUSE EARFL IS NOT INVOLVED IN CONTENT CREATION NOR MATERIAL, YOU HEREBY RELEASE EARFL AND ITS AFFILIATES (AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL, CONSEQUENTIAL AND OTHERWISE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN USERS, OR OTHER CONSUMERS OF THE SITE.
-
Indemnity; Limitation of Liability.
Indemnity and Defense. You will indemnify and hold harmless earfl and its Affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity ("Claim") that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (ii) your Services and any Materials, including any actual or alleged infringement of any intellectual property or proprietary rights by any of your Services or Materials; and/or (iii) your failure to comply with any applicable laws and regulations in connection with your use of the Site.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EARFL AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SITE SERVICES, THE INABILITY TO USE THE SITE SERVICES, OR ANY SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EARFL'S OR ITS AFFILIATES' AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED THE AMOUNT OF FEES EARNED BY EARFL IN CONNECTION WITH YOUR REQUEST FOR, OR YOUR PERFORMANCE OF, SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
-
Applicable Law; Arbitration.
The Site is arranged, sponsored, and managed by earfl in the state of California, USA. The laws of the state of California govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. You agree that any action at law or in equity arising out of or relating to these terms and conditions shall be submitted to confidential arbitration in San Francisco, California, except that, to the extent you have in any manner violated or threatened to violate earfl's intellectual property rights, earfl may seek injunctive or other appropriate relief in any state or federal court in the state of California, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
-
Termination.
You may at any time elect to stop using the Site, provided that in discontinuing any Site activities, you must use earfl's standard functionality and further must abide by all applicable earfl Policies, Procedures and Guidelines. earfl, in its sole discretion, may terminate this Agreement, suspend access to the Site, or remove any Content immediately without notice for any reason.
-
General Provisions
Entire Agreement. This Agreement and the general terms and conditions of the Site, including the Policies, constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
Assignment. You may not assign this Agreement without our prior written consent. We may assign this Agreement at any time, without notice. Subject to the foregoing, this Agreement will be binding on each party's successors and permitted assigns.
Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
No Waiver. We will not be considered to have waived any of our rights or remedies, or portion thereof, unless the waiver is in writing and signed by us. earfl's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of earfl's right to subsequently enforce such provision or any other provisions of this Agreement.
Notices. All notices relating to this Agreement will be sent by e-mail or will be posted on the Site. We will send notices to you at the e-mail address maintained in our records for you. You must send notices to us at our current e-mail address published on the Site. E-mail notices are deemed written notices for all purposes for which written notices may be required. E-mail notices are deemed received the business day after transmission if properly addressed to the intended recipient.