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Terms of Use
PLEASE READ THESE TERMS OF USE ("AGREEMENT") CAREFULLY BEFORE USING THE WEBSITE OR SERVICES (BOTH AS DEFINED BELOW) OFFERED BY CHIRP INTERACTIVE, INC. ("CHIRP"). 1. The www.chirp.com website and domain name (the "Website"), and any other features, content, or application services offered by Chirp in connection therewith, including the chirpscreen service (collectively with the Website, the "Services") are owned and operated by Chirp. BY USING THE SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE WEBSITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND CHIRP'S PRIVACY POLICY POSTED AT http://www.chirp.com/privacy ON THE WEBSITE, WHICH IS INCORPORATED HEREIN BY THIS REFERENCE. UNLESS OTHERWISE AGREED BETWEEN CHIRP AND USER, THIS AGREEMENT APPLIES TO ALL USERS OF THE SERVICES, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF ANY CONTENT, INFORMATION, AND OTHER MATERIALS OR SERVICES ON THE WEBSITE. 2. MODIFICATIONS TO THIS AGREEMENT CHIRP RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE ON THE WEBSITE, OR BY SENDING YOU A NOTICE VIA EMAIL OR POSTAL MAIL. YOU SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. SUCH MODIFICATIONS ARE EFFECTIVE UPON FIRST POSTING OR NOTIFICATION AND USE OF ANY SERVICES BY YOU FOLLOWING SUCH POSTING OR NOTIFICATION CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS MODIFIED. YOU AGREE TO REVIEW THIS AGREEMENT REGULARLY TO ENSURE THAT YOU ARE UPDATED AS TO ANY CHANGES. THIS AGREEMENT, TOGETHER WITH THE CHIRP PRIVACY POLICY AND ANY OTHER LEGAL NOTICES PUBLISHED BY CHIRP ON THE WEBSITE, SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND CHIRP CONCERNING THE SERVICES. 3. ACCESS TO SERVICES 3.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Chirp hereby grants you permission to use the Services only as set forth in this Agreement, and provided that:
(a) your use of the Services as permitted is solely for your personal, noncommercial use; 3.2 In order to access some features of the Website or to use the Services, you will have to create a membership account. You may never use another's account, username or password without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Chirp immediately of any breach of security or unauthorized use of your account. You may be required to expressly accept or reject these Terms of Use when you register; you agree that any requirement that you do so does not in any way vitiate your assent to comply with the Terms of Use. Although Chirp will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Chirp or others due to such unauthorized use. 3.3 You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website in a manner that sends more request messages to the Chirp servers in a given period of time than a single human can reasonably produce in the same period by using a conventional on-line web browser. You agree not to collect or harvest any personally identifiable information, including account names, through the Services, nor to use the communication systems provided by the Services for any commercial solicitation purposes. Chirp reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Chirp's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. 4. INTELLECTUAL PROPERTY RIGHTS The content on the Website, except any and all User Submissions, including without limitation, the text, software, scripts, graphics, files, images, photos, sounds, music, videos, interactive features and the like (collectively "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Chirp, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Chirp reserves all rights not expressly granted in and to the Services and the Content. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content, Marks, third party User Submissions, or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any right of any third party. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You represent and warrant, and will promptly demonstrate upon Chirp's request, that:
(a) You own or otherwise possess all necessary rights to use, distribute, publish, display and otherwise exploit for any purpose ("Use") all images, information, text, graphics, audio files, videos, messages and other materials that will be Used on the Chirpscreen service through your accounts with Chirp's third party content providers (collectively, the "Materials"). You are authorized to grant all of the aforementioned rights to the Materials to Chirp and all users of the Chirpscreen service; You hereby grant Chirp a worldwide, non-exclusive, royalty-free, fully paid, perpetual, irrevocable, sublicenseable and transferable license to Use and otherwise fully exploit the Materials in connection with the Chirpscreen service and Chirp's business. Chirp does not guarantee that any Materials will be made available on the Service. Chirp and its agents have the right, but not the obligation, to monitor any Materials from time to time for any lawful purpose. Chirp may, without notice to you and for any reason or for no reason at all remove or block any Materials or other content from the Service. 5. TERM This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services or your membership at any time by following the instructions on the Website. Chirp may terminate your access to the Services or your membership at any time, for any reason, and without warning. 6. FEES You acknowledge that Chirp reserves the right to charge fees for use of the Services and to change its fees from time to time, in its sole discretion. 7. USER SUBMISSIONS 7.1 The Website permits the submission of comments and other communications submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Chirp does not guarantee any confidentiality with respect to any such submissions. 7.2 You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. You agree that Chirp has no liability with respect to any User Submissions, including, without limitation, your own submissions, and you hereby irrevocably release Chirp and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof. 7.3 In connection with your User Submissions, you affirm, represent, and warrant that you can and will demonstrate to Chirp's full satisfaction upon its request that the posting of your User Submission on or through the Website does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person or entity. You agree to pay all royalties, fees, and other monies owing any person or entity by reason of any content posted by you to or through the Website. 7.4 By submitting the User Submissions to Chirp, or displaying, publishing, or otherwise posting any content on or through the Website, you hereby do and shall grant Chirp a worldwide, non-exclusive, royalty-free, fully paid, sublicenseable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, and otherwise fully exploit the User Submissions in connection with the Website and Chirp's (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media formats and through any media channels. You also hereby do and shall grant each user of the Website a non-exclusive license to access your User Submissions through the Website, and to use, modify, reproduce, distribute, prepare derivative works of and display such User Submissions as permitted through the functionality of the Website and under this Agreement. For clarity, the foregoing license grant to Chirp does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s). 7.5 In connection with User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Chirp or any third party; (ii) submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; (iii) post advertisements or solicitations of business; (iv) impersonate another person; (v) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity right, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Chirp all of the license rights granted herein; or (vi) submit material that is unsuitable for minors in any country. Chirp does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Chirp expressly disclaims any and all responsibility or liability in connection with User Submissions. 7.6 Chirp reserves the right to decide whether Content or a User Submission is inappropriate or violates this Agreement, including but not limited to copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. Chirp also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by you, or to restrict, suspend or terminate your access to all or any part of the Website at any time, for any or no reason, with or without prior notice. Notwithstanding the foregoing, Chirp assumes no responsibility for monitoring the Website, Content, or User Submissions for inappropriate conduct, or modifying or removing such conduct, Content or User Submissions from the Website. 7.7 In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Chirp's designated Copyright Agent to receive notifications of claimed infringement is: Eve Phillips, 1417 Valencia St., San Francisco, CA 94110, 415-401-8901 (ph), 415-401-8206 (fax), dmca@chirp.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. You hereby agree that you shall not assert any claim against the Chirp or its officers or directors with respect to such content unless and until: (1) you have fully completed the process set forth above; and (2) the Chirp has failed to remove the offending content within thirty (30) days after such notification without a reasonable explanation for its failure to do so. 7.8 It is Chirp's policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders. 7.9 Chirp reserves the right to discontinue any aspect of the Services at any time. 8. THIRD PARTY WEBSITES The Website may contain links to third party websites that are not owned or controlled by Chirp. When you access third party websites, you do so at your own risk. Chirp encourages you to be aware when you leave the Website and to read the terms and conditions and privacy policy of each third party website that you visit. Chirp has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or opinions expressed in any third party websites. In addition, Chirp will not and cannot monitor, verify, censor or edit the content of any third party site. By using the Website, you expressly relieve Chirp from any and all liability arising from your use of any third party website. 9. WARRANTY DISCLAIMER Chirp has no special relationship with or fiduciary duty to you. You acknowledge that Chirp has no control over, and no duty to take any action regarding: which users gain access to the Website; what content you access via the Website and its affiliated services; what effects the content may have on you; how you may interpret or use the content; or what actions you may take as a result of having been exposed to the content. You release Chirp from all liability for you having acquired or not acquired content through the Website. The Website may contain, or direct you to sites containing information that some people may find offensive or inappropriate. Chirp makes no representations concerning any content contained in or accessed through the Website, and Chirp will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Website. TO THE FULLEST EXTENT PERMITTED BY LAW, CHIRP, ITS SUPPLIERS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER CHIRP NOR ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. CHIRP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND CHIRP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE SERVICES ARE CONTROLLED AND OFFERED BY CHIRP FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. CHIRP MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW. 10. INDEMNITY You agree to defend, indemnify and hold harmless Chirp, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, demands, and expenses (including but not limited to attorneys' fees) arising from: (i) your use of and access to the Services or any Content that you post thereon; (ii) your violation of any term of this Agreement or your representations and warranties set forth above; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. 11. ELIGIBILITY By using the Services, you represent and warrant that (i) all registration information you submit is accurate and truthful; (ii) you will maintain the accuracy of such information; (iii) you are 13 years of age or older; (iv) your use of the Services does not violate any applicable law or regulation; and (v) you are of legal age to agree to these terms and conditions or you have your parents' permission to do so. Your profile and all associated Content may be deleted and your membership may be terminated without warning if Chirp believes that you are in breach of any of the foregoing representations and warranties. 12. LIMITATION OF LIABILITY IN NO EVENT SHALL CHIRP, ITS SUPPLIERS', OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHIRP IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SUBJECT TO THE FOREGOING, CHIRP'S LIABILITY TO YOU FOR ANY REASON WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS ($100.00). YOU SPECIFICALLY ACKNOWLEDGE THAT CHIRP SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. 13. ASSIGNMENT You may not transfer or assign this Agreement or any rights and licenses granted hereunder without Chirp's prior written consent. Chirp may freely transfer, assign, or delegate this Agreement, and any of its rights or obligations hereunder. 14. MISCELLANEOUS No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Chirp in any respect whatsoever. If there is any dispute about or involving the Services, you agree that the dispute shall be governed by the laws of the State of California, without regard to conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Alameda County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Chirp's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AND CHIRP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Contact. You may contact Chirp at the following address: 1417 Valencia St., San Francisco, CA 94110. Effective Date: January 1, 2008 |