SAAS AGREEMENT AND INCORPORATED LICENSE AGREEMENT
THIS SAAS AGREEMENT (OR “AGREEMENT”) DESCRIBES THE TERMS ON WHICH POWERPOST DIGITAL OFFER YOU, THE “USER,” ACCESS TO AN ACCOUNT (THE “ACCOUNT”) TO THE SYSTEM DESCRIBED BELOW. BY PRESSING THE “I ACCEPT” BUTTON, YOU ACCEPT THE TERMS AND CONDITIONS BELOW. BY PRESSING THE “DECLINE” BUTTON, YOU DECLINE THESE TERMS AND CONDITIONS, AND WILL NOT BE ABLE TO ACCESS THE SYSTEM. IF YOU HAVE ANY QUESTIONS REGARDING THESE TERMS AND CONDITIONS, PLEASE CONTACT USER SERVICE AT SUPPORT@POWERPOST.DIGITAL.
This PowerPost Digital Online Agreement (the “Agreement”) is entered into by and between PowerPost Digital, Inc., a Delaware corporation with offices at 6244 Clayton Ave., St Louis, MO 63139 (“PowerPost“) and the entity agreeing to these terms (“User”). This Agreement is effective as of the “Effective Date” listed above. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below. This Agreement governs User’s access to and use of the Services.
1.1 By gaining access to the PowerPost website or any PowerPost products, software, data feeds, and services provided to you on, from, or through the PowerPost website (collectively the “Service” as defined below) you signify your agreement to these terms and conditions (the “Terms of Service.” If you do not agree to any of these terms, please do not use the Service.
1.2 Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version http://www.powerpost.digital/account/terms). PowerPost may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
2.1 These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. “Content” includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of PowerPost Digital, including but not limited to all products, software and services offered via the PowerPost Digital website, such as the PowerPost Digital channels, the PowerPost Digital “Embeddable Player,” the PowerPost Digital “Uploader” and other applications.
2.2 The Service may contain links to third party websites that are not owned or controlled by PowerPost Digital. PowerPost Digital has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, PowerPost Digital will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve PowerPost Digital from any and all liability arising from your use of any third-party website.
3. PowerPost Digital Accounts
3.1 PowerPost shall, as soon as possible after the end of each month, deliver to Client a separate, month-end invoice (“Invoice”) showing the amount due from Client. Client shall make payment to PowerPost within 15 calendar days after receipt of PowerPost’s Invoice. Delinquent accounts (unpaid after the period of remittance) are susceptible to interest at 18% per annum or submission to collections.
3.2 The parties will negotiate in good faith the payment of any disputed amount. Client’s failure to question any invoice within 10 calendar days after the invoice is delivered to Client shall be conclusive evidence that such invoice is correct and that PowerPost is entitled to full payment for all sums set forth in such invoice.
3.3 Client shall be responsible for all expenses incurred by PowerPost in collection, including reasonable attorneys’ fees.
3.4 No deductions shall be made from PowerPost’s compensation except where PowerPost is finally determined to be legally liable by a court with jurisdiction over the parties.
4.PowerPost Digital Accounts
4.1 In order to access some features of the Service, you will have to create a PowerPost Digital account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify PowerPost immediately of any breach of security or unauthorized use of your account.
4.2 Although PowerPost Digital will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of PowerPost Digital or others due to such unauthorized use.
5.Technical Support Services.
5.1 By User. User will, at its own expense, respond to questions and complaints from End Users or third parties relating to User’s or End Users’ use of the Services. User will use commercially reasonable efforts to resolve support issues before escalating them to PowerPost Digital.
5.2 By PowerPost Digital. If User cannot resolve a support issue consistent with the above, then User may escalate the issue to PowerPost Digital in accordance with the TSS Guidelines. PowerPost Digital will provide TSS to User in accordance with the TSS Guidelines.
6.1 The initial term of this Agreement shall be for the period set forth on the first page of the Agreement (the “Term”).
(a) PowerPost may terminate this Agreement (i) upon 30 days’ prior written notice to Client, or (ii) immediately upon written notice to Client if Client fails to make a payment when due. Client shall pay PowerPost through the end of the Initial Term or then-current Term, as applicable.
(b) The Client may terminate this Agreement upon 30 days’ prior written notice to PowerPost. Upon termination of this agreement by Client without PowerPost’s fault or consent, Client shall pay PowerPost, in addition to all of the fees earned by PowerPost pursuant to the terms hereof, an early termination fee equal to 50% of the total remaining agreement fee balance, plus any and all expenses and third-party costs reasonably incurred by PowerPost through the effective date of cancellation.
(c) If Client desires to terminate this Agreement due to PowerPost’s fault, Client shall give PowerPost written notice detailing the nature of PowerPost’s fault and possible remedies, whereupon PowerPost shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Client without providing the foregoing notice and cure period shall be considered “termination without PowerPost’s fault’ as described above.
6.2 Of End User Accounts by PowerPost Digital. If PowerPost Digital Digital becomes aware of an End User’s violation of the Agreement, then PowerPost Digital may specifically request that User Suspend the applicable End User Account. If User fails to comply with PowerPost Digital’s request to Suspend an End User Account, then PowerPost Digital may do so. The duration of any Suspension by PowerPost Digital will be until the applicable End User has cured the breach which caused the Suspension.
6.3 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then PowerPost Digital may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If PowerPost Digital Suspends an End User Account for any reason without prior notice to User, at User’s request, PowerPost Digital will provide User the reason for the Suspension as soon as is reasonably possible.
6.4 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then PowerPost Digital may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If PowerPost Digital Suspends an End User Account for any reason without prior notice to User, at User’s request, PowerPost Digital will provide User the reason for the Suspension as soon as is reasonably possible.
7.General Use of the Service—Permissions and Restrictions
7.1 User shall not license, sell, lease, rent, outsource or otherwise make available the Service to third parties, other than Named Users and Affiliates. User shall be responsible for the acts and omissions of its Affiliates and Named Users as if they were the acts and omissions of User. Rights of any Named User licensed to utilize the Services cannot be shared or used by more than one individual. In addition, a Named User may not be transferred from one individual to another unless the original user no longer requires, and is no longer permitted, access to the Service.
7.2 User shall not remove notices and notations on the Site or in the Service that refer to copyrights, trademark rights, patent rights and other intellectual property rights. PowerPost Digital or its licensors owns all right, title and interest in any and all patent rights, copyrights, trademark rights and other rights in the Service, as well as any improvements, design contributions or derivative works conceived or created by either party in or to the Service. Except for the limited rights expressly granted herein, this Agreement does not transfer from PowerPost Digital any proprietary right or interest in the Service. All rights not expressly granted to User in this Agreement are reserved by PowerPost Digital and its licensors.
7.3 When using the Service User shall not, and shall ensure that its Affiliates and Named Users do not: (a) translate, decompile, reverse-engineer or otherwise modify any parts of the Service (except as described in the Documentation) (b) transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the PowerPost Digital software, the PowerPost Digital systems used to host the Service, other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service made known to User; (e) use the Service in the operation of a service bureau or time-sharing service; (f) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or otherwise (other than a “bookmark” from a Web browser), to the Site or Service, or any part thereof; (g) circumvent the user authentication or security of the Site or Service or any host, network, or account related thereto; (h) use any application programming interface to access the Service other than those made available by PowerPost Digital; (i) mirror the Site on any server; (j) make any use of the Service that violates any applicable local, state, national, international or foreign law; or (k) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Service, or (l) except for licenses provided to Named Users as permitted in this Agreement, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, User for access to the Service.
7.4 Some content on the Site may come from government sources, is in the public domain, and is not copyrightable.
7.5 The Site may contain links to external Web sites and information provided on such external websites by third-party service or content providers. PowerPost Digital shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. User further agrees that PowerPost Digital shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with User’s use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Site, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content.
7.6 PowerPost shall be entitled to monitor User’s compliance with the terms of this Agreement, including but not limited the number of Named Users accessing the Service and, subject to this Agreement, PowerPost Digital may utilize the information concerning User’s use of the Service to improve PowerPost Digital products and services and to provide User with reports on its use of the Service.
7.7 PowerPost may change or modify the Service at any time. PowerPost Digital will only be required to notify User of a change or modification to the Service in advance if the change or modification (i) is not within industrial standards and/or customary in the industry and (ii) does not extend and/or enhance the functionalities or architecture of the Service. If PowerPost Digital notifies User of a change as required in this Article 2.9 and User does not wish to use the Service after notification of such change, User may within forty-five (45) days of notification either provide PowerPost Digital with written notice of termination of the Agreement or reject the change by written notice to PowerPost Digital. If User rejects a change, PowerPost Digital may terminate this Agreement with six (6) months written notice. If User provides no written notice to PowerPost Digital within such forty-five (45) day period, User shall be deemed to have accepted such change and the Agreement shall continue in full force and effect. Upon termination, User’s exclusive remedy and PowerPost Digital’s sole liability is to refund any prepaid and unused fees from the effective date of the termination of the Service. Nothing in this Article 2.9 shall require PowerPost Digital to continue to provide any portion of the Service if this would result in PowerPost Digital violating the rights of any third party or any applicable law.
7.8 PowerPost Digital hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
A.You agree not to distribute in any medium any part of the Service or the Content without PowerPost Digital’s prior written authorization, unless PowerPost Digital makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).
B.You agree not to alter or modify any part of the Service.
C.You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means PowerPost Digital may designate.
D.You agree not to use the Service for any of the following commercial uses unless you obtain PowerPost Digital’s prior written approval:
- the sale of access to the Service;
- the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
- the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from PowerPost Digital appears on the same page and is of sufficient value to be the basis for such sales.
E. Prohibited commercial uses do not include:
- uploading an original video to PowerPost Digital, or maintaining an original channel on PowerPost Digital, to promote your business or artistic enterprise;
- showing PowerPost Digital videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 6.6D; or
- any use that PowerPost Digital expressly authorizes in writing.
F. If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the PowerPost Digital website.
G. If you use the PowerPost Digital Uploader, you agree that it may automatically download and install updates from time to time from PowerPost Digital. These updates are designed to improve, enhance and further develop the Uploader and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit PowerPost Digital to deliver these to you) as part of your use of the Uploader.
H. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the PowerPost Digital servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, PowerPost Digital grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. PowerPost Digital reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
I. In your use of the Service, you will comply with all applicable laws.
J. PowerPost Digital reserves the right to discontinue any aspect of the Service at any time.
8.PowerPost Digital Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
8.1 The Content on the Service, and the trademarks, service marks and logos (“Marks”) on the Service, are owned by or licensed to PowerPost Digital, subject to copyright and other intellectual property rights under the law.
8.2 Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by PowerPost Digital on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of PowerPost Digital or the respective licensors of the Content. PowerPost Digital and its licensors reserve all rights not expressly granted in and to the Service and the Content.
8.3 You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
8.4 You understand that when using the Service, you will be exposed to Content from a variety of sources, and that PowerPost Digital is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against PowerPost Digital with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless PowerPost Digital, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
- Your Content and Third Party Content
9.1 As a PowerPost Digital account holder you may submit Content to the Service, including videos and user comments.
9.2 You understand that PowerPost Digital does not guarantee any confidentiality with respect to any Content you submit. You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service.
9.3 You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to PowerPost Digital all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
9.4 You retain all of your ownership rights in your Content. However, by submitting Content to PowerPost Digital, you hereby grant PowerPost Digital a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and PowerPost Digital’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that PowerPost Digital may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
9.5 Flaming, harrassing, or threatening other Users is prohibited.
9.6 Posting inappropriate material, such as malicious files, offensive images, or links containing pornography, is prohibited.
9.7 Posting other people’s personal information is prohibited.
9.8 You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant PowerPost Digital all of the license rights granted herein.
9.9 PowerPost Digital does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and PowerPost Digital expressly disclaims any and all liability in connection with Content. PowerPost Digital does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and PowerPost Digital will remove all Content if properly notified that such Content infringes on another’s intellectual property rights. PowerPost Digital reserves the right to remove Content without prior notice.
9.10 User is solely responsible for any and all acts and omissions that occur within the system, including under any account or password issued to User by PowerPost Digital at any time. User agrees not to engage in or permit any User, agent, contractor or employee of User to engage in any unacceptable use of the System, which includes, without limitation, use of the System to: (a) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export and import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the System or any other computer network; (g) disseminate or transmit viruses, trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by the PowerPost Digital to be in conflict with the spirit or intent of this Agreement.
- Account Termination Policy
10.1 PowerPost Digital will terminate a user’s access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
10.2 PowerPost Digital reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. PowerPost may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms of Service.
- Digital Millennium Copyright Act – COPYRIGHT & TAKE DOWN
11.1. Restriction on Use of Third Party Intellectual Property. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of to terminate access privileges of any User who infringes the copyright rights of others upon receipt of prompt notification to by the copyright owner or the copyright owner’s legal agent.
11.2. Uncensored. User and its Authorized Users acknowledge that the System includes complete, uncensored access to material on the Internet created, maintained and disseminated by persons other than , portions of which may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious and with respect to which exerts no editorial control, screening or blocking, measures.
11.3. Take Down. Without limiting the foregoing, if you believe that your work has been copied and posted on the System in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the System; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. ’s Copyright Agent for notice of claims of copyright infringement can be identified as posted at .
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted 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;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have 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
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
A.Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, Missouri, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, PowerPost Digital may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at PowerPost Digital’s sole discretion.
- Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PowerPost Digital, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. PowerPost Digital MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. PowerPost Digital DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PowerPost WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
- Limitation of Liability
IN NO EVENT SHALL PowerPost Digital, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT PowerPost Digital SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by PowerPost Digital from its facilities in the United States of America. PowerPost Digital makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless PowerPost Digital, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
- Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 18, as the Service is not intended for children under 18. If you are under 18 years of age, then please do not use the Service. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by PowerPost Digital without restriction.
You agree that: (i) the Service shall be deemed solely based in Missouri; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over PowerPost, either specific or general, in jurisdictions other than Missouri. These Terms of Service shall be governed by the internal substantive laws of the State of Missouri, without respect to its conflict of laws principles. Any claim or dispute between you and PowerPost Digital that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in St. Louis County, Missouri. These Terms shall constitute the entire agreement between you and PowerPost Digital concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and PowerPost Digital’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. PowerPost Digital reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND PowerPost Digital AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.Limitation of Liability
18.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
18.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY USER TO PowerPost Digital HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
18.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
19.1 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
19.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
19.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
19.4 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
19.5 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
19.6 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
19.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.8 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
19.9 Governing Law. This Agreement is governed by Missouri law, excluding that state’s choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN ST. LOUIS COUNTY, MISSOURI.
19.10 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
19.11 Entire Agreement. This Agreement and all documents referenced herein, are the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.