Terms of Use
The Effective Date of these Terms of Use is December 5th, 2020.
IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE (“TERMS”) BEFORE USING OUR SITE (DEFINED BELOW), AS THEY GOVERN YOUR USE OF THE SITE AND AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. These Terms only apply to the web site that post these Terms, including any features, applications, widgets, or online services that post a link to the Terms, whether accessed via computer, mobile device or otherwise (collectively, “Site”). The Site is owned or controlled by Beachmonkey LLC. (“BEACHMONKEY”). These Terms do not apply to any other web site or any offline activities by BEACHMONKEY (unless specifically stated). You agree to these Terms by accessing or using any of the Site. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE ANY SITE.
In some instances, both these Terms and a separate term of service or guidelines document setting forth additional conditions may apply to a service or product offered via the Site (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Beachmonkey Privacy Policy, which is applicable to the Site.
OWNERSHIP OF SITE MATERIALS
Unless otherwise explicitly specified, all materials that are included in or are otherwise a part of the Site (including past, present and future versions of the Site), including, without limitation: graphics; layout; text; instructions; images; audio; videos; designs; ringtones; wallpapers; games; contests; voting; technology; applications; widgets; artwork; information; data; designs; compilations; advertising copy; logos; domain names; BEACHMONKEY logos, trademarks and services marks, and any other BEACHMONKEY product and service names that are trade identities of BEACHMONKEY (the “BEACHMONKEY Marks”); any and all copyrightable material (including source and object code); the “look and feel” of the Site; the compilation, assembly and arrangement of the Site; and all other materials related to the Site (collectively, the “Materials”) are owned, controlled or licensed by BEACHMONKEY, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by BEACHMONKEY, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under these Terms are hereby reserved for BEACHMONKEY and/or its parent, members, managers, subsidiaries affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way BEACHMONKEY’s rights to exploit fully any or all of the Materials.
You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Materials, or take any action whatsoever in derogation of BEACHMONKEY’s rights therein. You acknowledge and agree that you will not acquire or claim any rights in the Materials, or aid or abet anyone else in doing so.
The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the prior written authorization of BEACHMONKEY, unless and except as is expressly provided in these Terms. Any other use of the Materials or BEACHMONKEY Marks without the prior written authorization of BEACHMONKEY is strictly prohibited.
To seek the written authorization of BEACHMONKEY for reproductions of Materials, please contact us at TERMS@BEACHMONKEY.COM
YOUR LICENSE TO USE MATERIALS AVAILABLE ON OUR SITE
You may visit our Site without further permission from Beachmonkey and Beachmonkey grants you a limited, personal, non-exclusive, non-commercial, revocable and non-transferable license to use, download, view and play the Materials. This license is subject to your full compliance with these Terms. When you download or use Materials, you agree to and you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Materials; and (c) not allow or assist any third party (whether or not for your benefit) to copy or adapt any object code associated with the Site or reverse engineer, modify or attempt to discover any code associated with the Site. You also agree that you will not, including by use any robot, scraper, or other data mining technology or process, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard search engine or Internet browser usage or as expressly authorized by Beachmonkey).
Except as expressly set forth elsewhere in these Terms, nothing in these Terms will be interpreted to grant you, any right or license to enter into sublicenses or redistribution agreements with respect to any portion of the Materials or to otherwise rent, sell, lease, loan, transfer, assign, broadcast, upload to any computer or wireless device, sublicense, distribute or allow access to the Materials. You agree that you will not charge any person or entity to view, listen, play or otherwise access any Materials, or disseminate any Materials in any manner to the public (for free or for a fee).
REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. Beachmonkey encourages you to report any content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringe 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”), Beachmonkey has a designated agent for receiving notices of copyright infringement and Beachmonkey 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 Beachmonkey’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.
If you believe that any content on the Site violate your rights other than copyrights, please provide Beachmonkey with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Notice of claims of copyright or other intellectual property infringement must be sent to BEACHMONKEY’s Copyright Agent:
Email: copyright-agent @Beachmonkey.com
Mailing Address: 1101 N Ocean Blvd #4 Myrtle Beach, SC 29577 USA, Attn: Copyright Agent
Please note that this procedure is exclusively for notifying BEACHMONKEY of claims that your copyrighted material or other intellectual property has been infringed.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
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.
Beachmonkey will provide you with notice if your materials have been removed based on a third-party complaint of alleged infringement of the third party’s intellectual property rights.
INFORMATION/CONTENT YOU SUBMIT
The Site may provide you and others with the opportunity to participate in message boards, chat rooms and other public areas (“Community Forums”) 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 to Beachmonkey or a Site, including, without limitation, comments, ideas, review, suggestions and other content (collectively, “User Content”).
Except as otherwise described in the Privacy Policy, or applicable Additional Terms, you agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned.
You remain the owner of your User Content, but you acknowledge that Beachmonkey must have a license from you to accept your User Content. You grant to Beachmonkey the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify and create derivative works of, 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 later developed; and with any technology or devices now known or later developed and to advertise, market and promote the same.
You further agree that Beachmonkey is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or Beachmonkey, 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 obligation, remuneration or attribution of any kind to you or anyone else. You further perpetually and irrevocably grant Beachmonkey the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation, remuneration or attribution of any kind to you or anyone else. You further authorize Beachmonkey to publish your User Content in a searchable format that may be accessed by users of the Site and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
You agree that 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 Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant Beachmonkey these licenses. Upon Beachmonkey’s request, you will furnish Beachmonkey any documentation, substantiation or releases necessary to verify your compliance with these Terms.
You agree that Beachmonkey 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 rights to your User Content including, without limitation, by bringing and controlling actions in your name and on your behalf (at Beachmonkey’s cost and expense, to which you agree to consent and irrevocably appoint Beachmonkey as your attorney-in-fact, with the power of substitution and delegations, which appointment is coupled with an interest).
You further acknowledge and agree that Beachmonkey does not and will not have any obligation to review, monitor, display, accept or exploit any User Content and Beachmonkey may, in its sole discretion, delete, move, re-format, edit, alter, distort, remove or refuse to exploit User Content at any time without notice or liability to you or any other party. You understand that User Content need not be maintained on the Site by us for any period of time and we reserve the right to delete it at any time.
All of your User Content is your sole responsibility. This means that you, and not Beachmonkey, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available via the Site. If you post personal information to publicly available areas of the Site then you may receive unsolicited messages from third parties. Under no circumstances will we be liable in any way for any of User Content including, without limitation, any errors or omissions in User Content, or for any loss or damage of any kind incurred as a result of User Content.
VIRAL DISTRIBUTION AND WIDGETS
Beachmonkey may allow you – but only through express written permission –to engage in certain personal uses of Materials that include the ability to share Materials with others (“Viral Distribution”). For example, the Site may allow you to send Materials to friends, display Materials on your personal web site or post Materials on a third party web site. We reserve the right to revoke our permission for Viral Distribution at any time and for any reason and you agree to comply with any terms we post in connection the Viral Distribution of Materials.
Similarly, the Site may provide content that you may choose to embed on your personal web page, third party web site or social networking site by pasting the HTML or other code provided by us (typically labeled as an embed code) (“Widgets”). Widgets are Materials and subject to the limited, revocable license described above for Materials. We may discontinue providing the services necessary for the Widgets to operate or we may disable Widgets you have embedded at any time for any reason without any liability to you. You agree that our permission to you to use Widgets on your personal web page does not provide you (or any third party) with any intellectual property rights in or to the Widget or any Materials made available via any Widget.
You agree that you will not embed or otherwise make available a Widget on a web page or web site containing content that (i) is threatening, abusive, harassing, , hateful, or racially, ethnically or otherwise objectionable (in Beachmonkey’s sole opinion). Beachmonkey makes no specific warranties about Widgets. You agree not to circumvent (or in any way attempt to circumvent) the security or rights management features in the Widget or any component of the Widget (including any video player) that are designed to prevent users from copying, manipulating or retaining the Materials made available via the Widget. You also agree to not use (or attempt to use) the Widget or any component of the Widget to display content other than the Materials provided or intended by Beachmonkey to be displayed via a particular Widget.
NOTICE TO THIRD PARTY SITES: Any 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.
PAID SERVICES
Some of the services on the Site may require you to pay a fee, such as subscription services on the Site, as described in the specific conditions included where those services, if any, are offered. The Site may offer one time fee-based services and subscription based services. Regardless of the type of service you purchase, you agree to pay all fees and charges that you incur. Unless otherwise noted, all currency references are in U.S. dollars. We may, upon notice if required by applicable laws, at any time change the amount of, or basis for determining, any fee or charge, or institute new fees or charges. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Beachmonkey does not provide price protection or refunds in the event of a price drop or promotional offering. We may occasionally offer promotional trial subscriptions to a paid service on a Site for free or at special discounted prices. If you sign up for a trial subscription, your subscription will be either 1) automatically renewed at the normal subscription rate in effect at the end of the trial period, unless you cancel at the required time before the end of the trial period; or 2) terminated, unless you successfully sign up for a paid subscription, depending on the terms of your trial subscription. If you have subscribed to a paid service on a Site, then by so subscribing you are entering into a legal and binding agreement between yourself, as an end user, and Beachmonkey to purchase that subscription.
ACCEPTABLE USE POLICY; COMMUNITY USAGE RULES
When you contribute, upload or otherwise provide User Content to a Site, you agree to comply with the following Community Usage Rules (“Rules”):
User Content must be yours please. All User Content must be original with you, not copied from someone else’s work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Site and elsewhere.
No pictures or images of anyone but you and your friends and family. If you choose to upload photos to the Site, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know but only with their express permission to post it.
Don’t upload 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.
No music please. 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.
Please follow codes of social decency. Be respectful of others’ opinions and comments so we can continue to build a community for everyone to enjoy. Harassing, stalking and personal attacks 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, sexual preference or physical handicap or that are defamatory, slanderous or pornographic.
Do not use the Site for commercial purposes. Your User Content may not advertise or promote a product or service except those provided on the Site. 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 User Content that is illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don’t upload or post it. If you do upload or post User Content that is illegal or 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 or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
Public forum. We hope that you will use the Community Forums to exchange information and content and have discussions with other members. However, please remember that the Community is a public forum and User Content that you post on the Community Forum will be accessible and viewable by other users. Do not post personal information (e.g., full name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
Don’t share other people’s personal information. Your User Content may not reveal another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
Don’t damage the Site or anyone’s computers. User Content may not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
Don’t share confidential information or trade secrets. User Content may not contain any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements)
You must not and agree not to (a) interfere with or disrupt a Site or any Beachmonkey or Site servers or networks; or (b) intentionally or unintentionally violate any applicable local, state, national or international law, including, without limitation, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
MEMBERSHIP & REGISTRATION
Certain areas of the Site may require registration or may otherwise ask you to provide information to participate in certain features or access certain Materials or User Content. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Materials or User Content or participate in certain features of the Site.
When you provide information to a Site, you agree to provide only true, accurate, current and complete information.
If you register with us, you accept responsibility for all activities that occur under your account or password and you agree you will not sell, transfer or assign your membership or any membership rights. 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 name in whole or in part. Beachmonkey reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
YOUR WARRANTIES
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms or, if you are a minor, your parent or legal guardian has approved your participation on this Site and has read and agreed to these Terms on your behalf; and (ii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms.
You agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Site. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Site, including, without limitation, those governing your transmission or use of any software or data.
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, when you submit or post any personal or other information, and in all other online activities.
PROMOTIONS
The Site may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the 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 sweepstakes or promotion.
THIRD PARTY LINKS, CONTENT AND APPLICATIONS
There may be links from the Site, or from communications you receive from the Site, to third party web site or online features. The Site also may include third party content that we do not control, maintain or endorse.
You may choose, at your sole and absolute discretion and risk, to use applications that connect a Site or your profile on a Site with a third party site (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Site profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information relating to your Site accounts, you are consenting to the information about your account being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Beachmonkey has not provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold Beachmonkey harmless for the sharing of information relating to your Site accounts that results from your use of an Application. You must read all log-in boxes and other pop-up boxes closely for notices about sharing your account information with, through or by any other means identified on an Application.
The Site may include a button enabling you to indicate, on your social networking page, that you “like” a specific product on the Site, or a feature that lets you post to your social networking page a link to a specific Site product or the ability to share content from the Site or your User Content with a third party. Using this functionality typically requires you to login to your account on the third party site and you do so at your own risk. We do not control any of these third party site or any of their content. Accordingly, you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party site or online features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND THROUGH THE SITE INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.
LINKING POLICY
Beachmonkey grants you the revocable permission to link to the Site; provided, however, that your web 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 (except as explicitly permitted as described in the “WIDGET” section above); (b) must not imply that Beachmonkey or any Site is endorsing or sponsoring it or its products, unless Beachmonkey has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in Beachmonkey’s sole opinion, harm Beachmonkey or its products or services; (d) must not use any Beachmonkey trademarks without the prior written permission from Beachmonkey; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Beachmonkey’s sole opinion), and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to a Site, you agree that you do and will continue to comply with the above linking requirements.
Notwithstanding anything to the contrary contained in these Terms, Beachmonkey reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion.
MOBILE
The Site may offer features and services that are available to you via your mobile device. These features and services may include, without limitation, the ability to upload content to the Site, receive messages from the Site, download applications to your mobile phone or access Site features (collectively, the “Mobile Features”). We may charge for Mobile Features and these charges will be disclosed prior to completion of registration for the Mobile Feature. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. Typically, you will text a keyword (e.g., “STOP”) to the applicable short code for the Mobile Feature.
You agree that the Mobile Features for which you are registered may send communications to your mobile device regarding Vice. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify Beachmonkey of any changes to your mobile number and update your account(s) on the Site to reflect this change.
SOFTWARE AND OTHER ITEMS AVAILABLE FOR DOWNLOAD
Any items that we make available for download or use from the Site and/or our servers (the “Downloadable Items”) are the copyrighted work of Beachmonkey or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR DISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR DISTRIBUTION IS EXPRESSLY PERMITTED BY THE ADDITIONAL TERMS APPLICABLE TO SUCH DOWNLOADABLE ITEMS.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER BEACHMONKEY NOR ANY OF ITS MEMBERS, MANAGERS, EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, VENDORS OR CONTRACTORS (COLLECTIVELY, “BEACHMONKEY PARTIES”) MAKE ANY 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 OR DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED ON THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM BEACHMONKEY OR VIA THE SITE. IN ADDITION, THE BEACHMONKEY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE BEACHMONKEY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED ON THEM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE BEACHMONKEY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY OR RELIABLE. YOU ACKNOWLEDGE, BY YOUR USE OF ANY SITE, THAT YOUR USE IS AT YOUR SOLE RISK. THE BEACHMONKEY PARTIES DO NOT WARRANT THAT YOUR USE OF ANY SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE BEACHMONKEY 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 TERMS.
BY ACCESSING OR USING A SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THAT SITE.
THE BEACHMONKEY PARTIES DO NOT ENDORSE USER CONTENT, ARE NOT RESPONSIBLE FOR USER CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER CONTENT) FOR ANY LOSS, DAMAGE (WHETHER DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY USER CONTENT OBTAINED THROUGH A SITE.
DISCLAIMERS/LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL THE BEACHMONKEY 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) WIDGETS OR THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE BEACHMONKEY 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 A SITE’ TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, MOBILE PHONE OR OTHER 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 BEACHMONKEY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE BEACHMONKEY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES 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 BEACHMONKEY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF BEACHMONKEY’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 THE SITE OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE BEACHMONKEY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE SITE OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE BEACHMONKEY PARTIES.
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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
INDEMNIFICATION
You agree to indemnify, defend (if requested by Beachmonkey) and hold the Beachmonkey Parties harmless from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your User Content; (b) your use of any Site or activities in connection with any Site; (c) your breach or anticipatory breach of these Terms; (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 or other device used to access a Site, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Beachmonkey Parties’ use of your information. You will cooperate as required by the Beachmonkey Parties in the defense of any claim. The Beachmonkey 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 Beachmonkey Parties.
TERMINATION
Beachmonkey reserves the right to terminate your access to and use of any Site in its sole discretion, without notice and liability, including, without limitation, if Beachmonkey believes your conduct fails to conform with these Terms. Beachmonkey also reserves the right to investigate suspected violations of these Terms. Any violation of these Terms may be referred to law enforcement authorities.
LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Beachmonkey to any registration requirement within such jurisdiction or country. Beachmonkey controls and operates the Site from offices located in the United States and makes no representations or warranties that the information, products, or services contained on the Site are appropriate for use or access in other locations. Anyone using or accessing a Site from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of any Site or any portion of a Site to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service, or other feature that we provide.
Software related to or made available by the Site may be subject to United States export controls. Thus, no software from any 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 (“Restricted Counties”); 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 (“Restricted Individuals”). By downloading any software related to a Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any of the Restricted Countries and that you are not a Restricted Individual.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content.
GOVERNING LAWS; JURISDICTION; COMMENCEMENT OF ACTIONS
THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF NEW YORK GOVERNING CONTRACTS ENTERED INTO AND TO BE FULLY PERFORMED IN THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN WHICHEVER OF THE FOLLOWING THREE COUNTIES ARE GEOGRAPHICALLY NEAREST TO YOUR PRIMARY PLACE OF RESIDENCE: COOK COUNTY, ILLINOIS; MANHATTAN COUNTY, NEW YORK; OR LOS ANGELES COUNTY, CALIFORNIA (“DETERMINED VENUE”). YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN THE DETERMINED VENUE FOR ANY SUCH LEGAL PROCEEDING AND WAIVE ANY RIGHT TO RESORT TO ANY FORM OF CLASS ACTION. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
MISCELLANEOUS
The failure of Beachmonkey to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Beachmonkey’s rights with respect to such breach or any subsequent breaches. No waiver by Beachmonkey of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Beachmonkey. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. Beachmonkey may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Beachmonkey’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against Beachmonkey by virtue of having drafted them.
ENTIRE AGREEMENT AND OUR RIGHT TO UPDATE THESE TERMS
These Terms and any applicable Additional Terms, as amended from time to time, constitutes the entire agreement that governs your use of the Site and supersedes any prior agreements between you and Beachmonkey with respect to the subject matter of these Terms.
Beachmonkey reserves the right to modify or add to these Terms at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the home page, and that your use of a Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using any Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms and will apply to your use of the Site from that point forward.