TasteDive, found on https://tastedive.com/, is a recommendation engine that helps you explore your taste! Once you are a Registered User (defined below), you can receive better, personalized recommendations. TasteDive allows you to keep a taste profile, find other people with similar interests, and "like" or "dislike" the things you discover.
PLEASE BE AWARE THAT SECTION 16 THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Use of the Services and Qloo Properties. The Website, the Services, and the information and content available on the
Website and the Services (as these terms are defined herein) (each, a “Qloo Property” and collectively, the “Qloo Properties”)
are protected by copyright laws throughout the world. Subject to the Agreement, Qloo grants you a limited license to reproduce
portions of Qloo Properties for the sole purpose of using the Services for your personal or internal business purposes.
Unless otherwise specified by Qloo in a separate license, your right to use any and all Qloo Properties is subject to the Agreement.
1.1. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Qloo Properties or any portion of Qloo Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Qloo Properties (including images, text, page layout or form) of Qloo; (c) you shall not use any metatags or other “hidden text” using Qloo’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Qloo Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access Qloo Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Qloo Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Qloo Properties. Any future release, update or other addition to Qloo Properties shall be subject to the Agreement. Qloo, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Qloo Property terminates the licenses granted by Qloo pursuant to the Agreement.
1.2. Third-Party Materials. As a part of Qloo Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Qloo to monitor such materials and that you access these materials at your own risk.
2.1. Registering Your Account. In order to access certain features of Qloo Properties you may be required to sign up and become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Website (each such account, a “Third-Party Account”).
2.2. Access Through a SNS. If you access the Qloo Properties through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts, by allowing Qloo to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Qloo and/or grant Qloo access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Qloo to pay any fees or making Qloo subject to any usage limitations imposed by such third-party service providers. By granting Qloo access to any Third-Party Accounts, you understand that Qloo may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Qloo Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Qloo Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Qloo Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Qloo’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Qloo Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND QLOO DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Qloo makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Qloo is not responsible for any SNS Content.
2.3. Registration Data. In registering an Account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least sixteen (16) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Qloo Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Qloo Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Qloo immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Qloo has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Qloo has the right to suspend or terminate your Account and refuse any and all current or future use of Qloo Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Qloo reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Qloo Properties if you have been previously removed by Qloo, or if you have been previously banned from any of Qloo Properties.
2.3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Qloo.
2.3. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Qloo Properties, including but not limited to, a mobile device that is suitable to connect with and use Qloo Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Qloo Properties.
Responsibility for Content.
3.1. Types of Content. You acknowledge that all Content, including Qloo Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Qloo, are entirely responsible for all Content that you post, e-mail, transmit or otherwise make available (“Make Available”) through Qloo Properties (“Your Content”), and that you and other Users of Qloo Properties, and not Qloo, are similarly responsible for all Content that you and they Make Available through Qloo Properties (“User Content”).
3.2. No Obligation to Pre-Screen Content. You acknowledge that Qloo has no obligation to pre-screen Content (including, but not limited to, User Content), although Qloo reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Qloo pre-screens, refuses or removes any Content, you acknowledge that Qloo will do so for Qloo’s benefit, not yours. Without limiting the foregoing, Qloo shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.2. Storage. Unless expressly agreed to by Qloo in writing elsewhere, Qloo has no obligation to store any of Your Content that you Make Available on Qloo Properties. Qloo has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Qloo Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Qloo retains the right to create reasonable limits on Qloo’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Qloo in its sole discretion.
4.1. Qloo Properties. Except with respect to Your Content and User Content, you agree that Qloo and its suppliers own all rights, title and interest in Qloo Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Qloo Properties.
4.2. Trademarks. Qloo and all related graphics, logos, service marks and trade names used on or in connection with any Qloo Properties or in connection with the Services are the trademarks of Qloo and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Qloo Properties are the property of their respective owners.
4.3. Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Qloo Properties.
4.4. Your Content. Qloo does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Qloo Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5. License to Your Content. Subject to any applicable account settings that you select, you grant Qloo a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Qloo Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Qloo Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Qloo, are responsible for all of Your Content that you Make Available on or in Qloo Properties.
4.6. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Qloo Properties, you hereby expressly permit Qloo to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7. Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Qloo in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.8. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Qloo through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Qloo has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Qloo a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Qloo Properties and/or Qloo’s business.
User Conduct. As a condition of your use of the Qloo Properties, you agree not to use Qloo Properties for any purpose
that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a)
take any action or (b) Make Available any Content on or through Qloo Properties that: (i) infringes any patent, trademark,
trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive,
harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
(iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales
without Qloo’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates
any person or entity, including any employee or representative of Qloo; (vi) interferes with or attempt to interfere with the proper functioning
of Qloo Properties or uses Qloo Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in,
any potentially harmful acts that are directed against Qloo Properties, including but not limited to violating or attempting to violate
any security features of Qloo Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider”
any pages contained in Qloo Properties, introducing viruses, worms, or similar harmful code into Qloo Properties, or interfering or
attempting to interfere with use of Qloo Properties by any other user, host or network, including by means of overloading, “flooding,”
“spamming,” “mail bombing,” or “crashing” Qloo Properties.
Investigations. Qloo may, but is not obligated to, monitor or review Qloo Properties and Content at any time.
Without limiting the foregoing, Qloo shall have the right, in its sole discretion, to remove any of Your Content for
any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Qloo does
not generally monitor user activity occurring in connection with Qloo Properties or Content, if Qloo becomes aware of
any possible violations by you of any provision of the Agreement, Qloo reserves the right to investigate such violations,
and Qloo may, at its sole discretion, immediately terminate your license to use Qloo Properties, or change, alter or remove
Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users.
7.1. User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Qloo reserves the right, but has no obligation, to intercede in such disputes. You agree that Qloo will not be responsible for any liability incurred as the result of such interactions.
7.1. Content Provided by Other Users. Qloo Properties may contain User Content provided by other Users. Qloo is not responsible for and does not control User Content. Qloo has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8.1. Third-Party Websites and Applications. Qloo Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Qloo Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Qloo. Qloo is not responsible for any Third-Party Websites or Third-Party Applications. Qloo provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2. Advertising Revenue. Qloo reserves the right to display third-party advertisements before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Qloo has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Qloo as a result of such advertising).
Indemnification. You agree to indemnify and hold Qloo, its parents, subsidiaries, affiliates, officers, employees,
agents, partners, suppliers, and licensors (each, a “Qloo Party” and collectively, the “Qloo Parties”) harmless from any
losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all
of the following: (a) Your Content; (b) your use of, or inability to use, any Qloo Property; (c) your violation of the
Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws,
rules or regulations. Qloo reserves the right, at its own cost, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you, in which event you will fully cooperate with Qloo in asserting any available defenses.
This provision does not require you to indemnify any of the Qloo Parties for any unconscionable commercial practice by such party
or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material
fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive
any termination of your Account, the Agreement and/or your access to Qloo Properties.
Disclaimer of Warranties and Conditions.
10.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF QLOO PROPERTIES IS AT YOUR SOLE RISK, AND QLOO PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. QLOO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) QLOO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) QLOO PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF QLOO PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF QLOO PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT ACCESSED THROUGH QLOO PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS QLOO PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. QLOO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM QLOO OR THROUGH QLOO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Qloo may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Qloo’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT QLOO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD QLOO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER
USERS OF QLOO PROPERTIES. YOU UNDERSTAND THAT QLOO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF QLOO PROPERTIES.
Limitation of Liability.
12.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL QLOO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT QLOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF QLOO PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE QLOO PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH QLOO PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON QLOO PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO QLOO PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A QLOO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A QLOO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A QLOO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL QLOO PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Qloo by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A QLOO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A QLOO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A QLOO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN QLOO AND YOU.
13.1. Violations. If Qloo becomes aware of any possible violations by you of the Agreement, Qloo reserves the right to investigate such violations. If, as a result of the investigation, Qloo believes that criminal activity has occurred, Qloo reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Qloo is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Qloo Properties, including Your Content, in Qloo’s possession in connection with your use of Qloo Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Qloo, its Users or the public, and all enforcement or other government officials, as Qloo in its sole discretion believes to be necessary or appropriate.
13.2. Breach. In the event that Qloo determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Qloo Properties, Qloo reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Qloo) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Qloo Properties;
(c) Discontinue your registration(s) with any of Qloo Properties, including any Services or any Qloo community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Qloo deems to be appropriate.
Term and Termination.
14.1. Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Qloo Properties, unless terminated earlier in accordance with the Agreement.
14.1. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Qloo Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Qloo Properties, unless earlier terminated in accordance with the Agreement.
14.1. Termination of Services by Qloo. If you have materially breached any provision of the Agreement, or if Qloo is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Qloo has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Qloo’s sole discretion and that Qloo shall not be liable to you or any third party for any termination of your Account.
14.1. Termination of Services by You. If you want to terminate the Services provided by Qloo, you may do so by (a) notifying Qloo at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Qloo’s address set forth below.
14.1. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Qloo will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.1. No Subsequent Registration. If your registration(s) with or ability to access Qloo Properties, or any other Qloo community is discontinued by Qloo due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Qloo Properties or any Qloo community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Qloo Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Qloo reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
International Users. Qloo Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Qloo intends to announce such Services or Content in your country. Qloo Properties are controlled and offered by Qloo from its facilities in the United States of America. Qloo makes no representations that Qloo Properties are appropriate or available for use in other locations. Those who access or use Qloo Properties from other countries do so at their own volition and are responsible for compliance with local law.
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.
It requires you to arbitrate disputes with Qloo and limits the manner in which you can seek relief from us.
16.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Qloo, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Qloo may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Qloo will pay them for you. In addition, Qloo will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Qloo. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would hasve. The award of the arbitrator is final and binding upon you and us.
16.4. Waiver of Jury Trial. YOU AND QLOO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Qloo are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
16.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Qloo username (if any), the email address you used to set up your Qloo account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7. Severability. Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Qloo.
16.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Qloo makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Qloo at the following address: email@example.com.
17.1. Electronic Communications. The communications between you and Qloo may take place via electronic means, whether you visit Qloo Properties or send Qloo e-mails, or whether Qloo posts notices on Qloo Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Qloo in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Qloo provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2. Release. You hereby release Qloo Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Qloo Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Qloo Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by the Qloo Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
17.3. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Qloo’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4. Force Majeure. Qloo shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Qloo Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6. Limitation Period. YOU AND QLOO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, QLOO PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17.7. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Qloo agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in state of New York.
17.8. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of NEW YORK, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
17.9. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
17.10. Notice. Where Qloo requires that you provide an e-mail address, you are responsible for providing Qloo with your most current e-mail address. In the event that the last e-mail address you provided to Qloo is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Qloo’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Qloo at the following address: email@example.com. Such notice shall be deemed given when received by Qloo by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.11. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.12. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.13. Export Control. You may not use, export, import, or transfer Qloo Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Qloo Properties, and any other applicable laws. In particular, but without limitation, Qloo Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Qloo Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Qloo Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Qloo are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Qloo products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.14. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.15. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.