- USE OF THE SITE
You are authorized to view, browse, and retrieve information from this Site, subject to the conditions described herein.
- OWNERSHIP AND RESTRICTIONS
For the purposes of this Section 2, the following capitalized terms will have the following meanings:
“Content” means any art, design, drawings, or images of any kind (in any form or media, including, without limitation, video or photographs) that may appear on the Site.
“Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(i) We Own the Site. You acknowledge and agree that we own all legal right, title and interest in and to all other elements of the Site, and all intellectual property rights therein (including, without limitation, all Content, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Site (collectively, the “Site Materials”)). You acknowledge that the Site Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Site Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Site or otherwise contained in the Site Materials are proprietary to us or our licensors.
(ii) No User License or Ownership of Site Materials. Your use of the Site does not grant you ownership of or any other rights with respect to any content, code, data, or other Site Materials that you may access on or through the Site. We reserve all rights in and to the Site Materials.
(iii) Further User Acknowledgements. For the sake of clarity, you understand and agree: (a) that your use of the Site does not give you any rights or licenses in or to the Site Materials; (b) that you do not have the right to reproduce, distribute, or otherwise commercialize any elements of the Site Materials (including, without limitation, any Content) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
(iv) User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the Site, including without limitation about how to improve the App (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
- CONDITIONS OF USE AND PROHIBITED ACTIVITIES
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE SITE, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE SITE ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.
(i) User Warranties. Without limiting the foregoing, you represent and warrant that your use of the Site will not (and will not allow any third party) to in any manner:
(1) involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
(2) involve using the Site to violate the legal rights (such as rights of privacy and publicity) of others;
(3) involve interfering with other users’ enjoyment of the Site;
(4) involve exploiting the Site for any unauthorized commercial purpose;
(5) involve modifying, adapting, translating, or reverse engineering any portion of the Site;
(6) involve removing any copyright, trademark or other proprietary rights notices contained in or on the Site or any part of it;
(7) involve reformatting or framing any portion of the Site;
(8) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Site or the content posted on the Site, or to collect information about its users for any unauthorized purpose;
(9) involve accessing or using the Site for the purpose of creating a product or service that is competitive with any of our products or services; or
(10) involve abusing, harassing, or threatening another user of the Site or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise).
- DISCLAIMERS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK, AND THAT THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SITE AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE SITE WILL BE ACCURATE; (IV) THE SITE OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SITE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR WILLFUL DEFAULT.
- LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, SUBSIDIARIES, AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE SITE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SITE AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU WITHOUT THESE LIMITATIONS.
- INDEMNIFICATION
You agree to hold harmless and indemnify us and our parent, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys’ fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the Site; or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Site. You agree that we will have control of the defense or settlement of any such claims.
- GIVEAWAYS AND CONTESTS
We may, from time to offer giveaways and contests for prizes. By participating, the entrant (“you”) agrees to be fully unconditionally bound by the rules, and you represent and warrant that you meet the eligibility requirements and are not prohibited from entering by any government or local laws. In addition, you agree to accept the decisions of Orange Whale, LLC. and all of its licensees, successors, and assigns, as final and binding as it relates to the content of the Campaign. By entering any giveaway or contest, entrant agrees that (1) any and all disputes, claims, and causes of action arising out of or in connection with the giveaway, or any Product awarded, shall be resolved individually without resort to any form of class action; (2) any claims, judgments and awards shall be limited to actual out-of-pocket costs incurred, including costs associated with entering the giveaway, but in no event attorney’s fees; and (3) under no circumstances will any entrant be permitted to obtain any award for, and entrant hereby waives all rights to claim, punitive, incidental or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for actual out-of-pocket expenses.
Giveaway and contest organizers are not responsible for any incorrect or inaccurate information, whether caused by web site users, tampering, hacking, or by any of the equipment or programming associated with or utilized in the giveaway or contest and assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to the web site. Giveaway and contest organizers are not responsible for injury or damage to participants’ or to any other person’s computer related to or resulting from participating in this giveaway or downloading materials from or use of the web site. If, for any reason, the giveaway or contest is not capable of running as planned by reason of infection by computer virus, worms, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes which giveaway organizers, in the sole opinion of giveaway organizers, deems could corrupt or affect the administration, security, fairness, integrity or proper conduct of this giveaway, giveaway organizers reserve the right at its sole discretion to cancel, terminate, modify or suspend this giveaway and select the recipients from entries received prior to the action taken or in such other manner as giveaway organizers may deem fair and appropriate.
By entering a giveaway or contest, entrants release Orange Whale, and each of their respective affiliated companies, directors, officers, employees, representatives, partners and agents from any liability whatsoever for any claims, costs, injuries, losses or damages of any kind arising out of or in connection with the giveaway or with the acceptance, possession or use of any Product (including, without limitation, claims, costs, injuries, losses or damages related to personal injuries, death, damage to, loss or destruction of property, rights of publicity or privacy, defamation or portrayal in a false light).
Giveaways and contests are organized by members of Orange Whale, whose decisions regarding the selection of recipients and all other aspects of the giveaway shall be final and binding in all respects. Orange Whale will not be responsible for typographical, printing or other inadvertent errors in these Official Giveaway Rules or in other materials relating to the giveaway. If you have any questions regarding a giveaway or contest, please contact [email protected].
- EXTERNAL SITES
The Site may include hyperlinks to other websites or resources (collectively, the “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from or through any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
- CHANGES TO THE SITE
We are constantly innovating the Site to help provide the best possible experience. You acknowledge and agree that the form and nature of the Site, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the Site at any time without notice.
- CHILDREN
You affirm that you are over the age of 13. The Site is not intended for children under 13. If you are under the age of 13 you may not use the Site. We do not knowingly collect information from or direct any of our content specifically to children under the age of 13. Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the Site.
- PRIVACY POLICY
Our Privacy Policy describes the ways we collect, use, store and disclose your personal information, and is hereby incorporated by this reference into these Terms. You agree to the collection, use, storage, and disclosure of your data in accordance with our Privacy Policy.
- DISPUTE RESOLUTION; BINDING ARBITRATION
(i) Arbitration; Waiver of Class Action. If we cannot resolve a dispute between you and us informally, you and we agree that any dispute arising out of or relating to this Agreement, including, without limitation, federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation, or any other legal theory, shall be resolved through binding arbitration, on an individual basis (the “Arbitration Agreement”). Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class and non-representative) basis. Arbitration shall be conducted in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf).
This Arbitration Agreement includes, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. All such matters shall be decided by an arbitrator and not by a court or judge.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, YOU AND OW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. The arbitration will be conducted by a single, neutral arbitrator and shall take place in the county or parish in which you reside, or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. To the extent permitted by law, the prevailing party in any action or proceeding to enforce this Agreement, any arbitration pursuant to this Agreement, or any small claims action shall be entitled to costs and attorneys’ fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator’s rules or applicable law.
(iv) Our Equitable Remedies. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by us through injunctive relief and other equitable remedies without proof of monetary damages.
- GENERAL
(i) Entire Agreement. These Terms and our Privacy Policy constitute the entire legal agreement between you and us and will be deemed to be the final and integrated agreement between you and us, and govern your access to and use of the Site, and completely replace any prior or contemporaneous agreements between you and us related to your access to or use of the Site, whether oral or written.
(ii) No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you
(iii) Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
(iv) Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
(v) No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
(vi) Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the state of Delaware and the laws of the United States applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
(vii) Venue. Subject to Section 16 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in the state and federal courts located in the State of Delaware, and we and you irrevocably consent and attorn to the personal jurisdiction and venue there.
(viii) Notices. We may provide you with any notices (including, without limitation those regarding changes to these Terms) by email or postings on the Site. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(ix) Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger.
