As of April 10, 2018
1. Changes to These Terms
We reserve the right to change these Terms or to modify any features of the Services at any time. The current version of the Terms will always be posted on Themalarkeymeter.com. By registering for the Services or continuing to use the Services after the posting of such changes, you agree to be bound by the changes.
3. Affiliate Advertising
4. Registration and Security
You may be asked to register or otherwise provide information about yourself in connection with the Services. When you do so, you agree to provide accurate, current, and complete information about yourself as requested or directed on the Services and to promptly update this information to maintain its accuracy. TMM has the right to suspend or terminate any account or other registration and to refuse any and all current or future use of the Services in its sole discretion if it suspects that such information is inaccurate or incomplete. You are responsible for maintaining the confidentiality of any password and username you are given or select in connection with the Services, and you are fully responsible for all activities that occur under your password or account. You agree to immediately notify TMM if you become aware of any unauthorized use of your password or username or any other breach of security.
5. Use of the Services and Compliance with Applicable Laws
When you access or use the Services, you are required to comply with all applicable laws (including intellectual property laws) and any other conditions or restrictions in any written or online notice from TMM (including these Terms). As a condition of your access and use of the Services, you agree that you will not use the Services for any purpose that is unlawful or prohibited by these Terms or any other applicable notice.
Without limiting the generality of the foregoing, you agree not to:
• Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity;
• Interfere with any other users’ rights to privacy and publicity, including by harvesting or collecting information from or about users;
• Upload or otherwise transmit any communication, software, or materials that contain a virus or is otherwise harmful to TMM or its users’ computers or systems; or
• Access the Services through any automated means, including “robots” and “spiders.”
6. Third-Party Content and Links to Third-Party Websites
The Services may contain third-party owned content and advertisements (“Third-Party Content”) and links to other websites (“Linked Sites”). TMM does not endorse, sponsor, recommend, or otherwise accept responsibility for any Third-Party Content or Linked Sites. You acknowledge that Third-Party Content and Linked Sites are not under the control of TMM, and TMM is not responsible for the content or privacy practices of the Third-Party Content or
7. User Submissions
The Services may offer features that allow users to post content and communicate with others. This content may include text, images, photographs, audio, video, or material in any other form (collectively, “User Submissions”). By submitting any User Submission on, to, or through the Services, you understand and agree that:
A. You will not post content that:
1. infringes on the rights (including copyright, trademark, patent, and other intellectual property rights and rights of privacy and publicity) of any third party;
2. is false, misleading, libelous, defamatory, obscene, abusive, hateful, or sexually-explicit;
3. degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability, or other classification;
4. contains epithets or other language or material intended to intimidate or to incite violence; or
5. violates any applicable local, state, national, or international law.
B. You must obtain all necessary permission from any individuals identified in or implicated by your submission (including those shown in photographic content), and, in the case of minors, also from their parents or legal guardians, as appropriate.
C. TMM is not responsible for any content posted by third parties and has no obligation to monitor the content posted. Nevertheless, TMM may monitor or review any User Submission as it chooses and reserves the right to remove, reject, or revise content that it deems inappropriate or otherwise objectionable for any reason whatever without consent.
D. Except with our prior written consent, you may make User Submissions only for non-commercial purposes. You may not solicit funds, promote commercial entities, or otherwise engage in commercial activity in the content you post.
E. You use and/or rely on any information provided by other users at your own risk. TMM is not in any manner endorsing the content of the content that users post and cannot and will not vouch for its reliability.
F. You are giving TMM the worldwide, irrevocable, perpetual, royalty-free, non-exclusive, and fully sublicenseable right and license to display, distribute, reproduce, transmit, publish, perform, translate, edit, adapt, remove, modify, create derivative works from, and otherwise use such User Submissions in whole or in part, including in combination with your name, likeness, or other material, in its sole discretion, including but not limited to on the Services, in any affiliated publications, and in any form, media, or technology now known or later developed, including for promotional and marketing purposes.
8. Intellectual Property
A. Copyright. The Services (including, but not limited to, text, images, photographs, graphics, user interface, screen shots, video and audio content, designs, and computer code, and the selection, coordination, and arrangement of such content) are protected under the copyright laws of the United States and other countries. All copyrights in the Services are owned by TMM or its third-party suppliers and licensors to the full extent permitted under the United States Copyright Act and all international copyright laws.
Except for content you have posted on the Services, or unless expressly permitted, you may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works, transmit, or in any way exploit any part of the Services, except that you may download, for your own personal use, one machine readable copy and/or one print copy that is limited to occasional articles of personal interest only. Without limiting the generality of the foregoing, you may not distribute any part of the Services over any network, including a local area network, nor sell or offer it for sale. In addition, you may not use the Services or any content on the Services to construct any kind of database. If you are interested in obtaining a license to use the Services or TMM’s content, please submit your request to our agent, PARS International Corp., at www.Info@malarkeymeter.com.
B. Trademark and Service Mark Rights. All rights in the product names, company names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of TMM, TMM affiliates, or third-party products or services, whether or not appearing in large print or with a trademark symbol, belong exclusively to TMM or their respective owners, and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials containing the trademarks, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Services confers on you any license or right under any patent or trademark of TMM, its affiliates, or any third party. To obtain written permission to use the trade and service mark rights of TMM, please submit your request to our agent, PARS International Corp.,
C. Use of Authorized Interface. The Services have been specially designed for presentation of content in a unique format and appearance to our users. We are concerned about the integrity of our Services when they are viewed in a setting created by a third party that includes advertising or other materials that we have not authorized to be displayed with our Services. Without limiting the provisions of this section, neither you nor any third party shall make use of the contents of the Services in any manner that constitutes an infringement of our rights, including copyright, or that has not been authorized by us.
D. Copyright Infringement Claims. Just as TMM requires users to respect our copyrights, and those of our affiliates and partners, we respect the copyrights of others. When we become aware of allegations of copyright infringement in material distributed on the Services, we will investigate the allegations and take appropriate action. This can include, in the case of individuals who repeatedly infringe the copyrights of others, termination of access privileges.
If you believe in good faith that your copyrighted work has been reproduced or is accessible on the Services without authorization in a way that constitutes copyright infringement or that your intellectual property rights have otherwise been violated, please provide TMM’s
Designated Agent with the following information in writing:
• Identification of the copyrighted work or other intellectual property claimed to have been infringed;
• Identification of the allegedly infringing material, reference, or link that is to be removed and information reasonably sufficient to permit TMM to locate the material, reference, or link;
• Your name, address and daytime telephone number, and an e-mail address if available, so that TMM may contact you if necessary;
• 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;
• A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright or other intellectual property owner, its agent, or the law; and
• A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Please note that due to security concerns, e-mail attachments will not be accepted. Any notice of infringement submitted electronically with an attachment will not be received or processed.
You may notify our designated copyright agent either by mail to The Malarkey Meter LLC, or by email to email@example.com. This contact information is only for suspected copyright infringement. Contact information for other matters is provided elsewhere on the Services.
9. Associated Press Materials
The following provision applies to all visitors (which shall include persons and representatives of legal entities, whether such representatives are persons or digital engines of a kind that crawls, indexes, scrapes, copies, stores, or transmits digital content). By accessing this website or digital service, you specifically acknowledge and agree that: (i) Associated Press text, photo, graphic, audio, and/or video material shall not be published, broadcast, rewritten for broadcast or publication, or redistributed directly or indirectly in any medium; (ii) no Associated Press materials nor any portion thereof may be stored in a computer except for personal and non-commercial use; (iii) the Associated Press will not be held liable for any delays, inaccuracies, errors, or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing; (iv) the Associated Press is an intended third party beneficiary of these terms and conditions and it may exercise all rights and remedies available to it; and (v) the Associated Press reserves the right to audit your possible unauthorized commercial use of AP materials or any portion thereof at any time.
You agree to indemnify and hold harmless TMM, its parents and affiliates, and each of their directors, officers, managers, employees, shareholders, agents, licensors, and contractors, from and against all claims, demands, disputes, losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising out of or in relation to these Terms or your use of the Services. TMM reserves the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
11. Disclaimer of Warranties
THE SERVICES – AND ANY PRODUCTS THAT ARE OFFERED THROUGH THE SERVICES (“PRODUCTS”) – ARE AVAILABLE “AS IS.” TMM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER RELATING TO THE SERVICES, PRODUCTS, LINKED SITES, OR OTHER CONTENT THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE SITE. TMM DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TMM DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (C) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICES, (D) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF DATA MADE AVAILABLE ON THE SERVICES OR OTHERWISE BY TMM, AND (E) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY TMM OR ANY THIRD PARTY. FURTHER, THERE IS NO WARRANTY THAT THE SERVICES – OR PRODUCTS OFFERED THROUGH THE SERVICES – WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.
TMM MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, (A) THAT THE INFORMATION PROVIDED THROUGH THE SERVICES WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (B) THAT THE SERVICES OR PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) THAT DEFECTS OR ERRORS IN THE SERVICES OR PRODUCTS WILL BE CORRECTED; OR (D) THAT THE CONTENT ON THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY INFORMATION ON THIS SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE, AND TMM DISCLAIMS ALL RESPONSIBILITY FOR THESE CHANGES.
WE DO NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE THROUGH THE SERVICES, AND SO WE DISCLAIM ANY RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL INFORMATION THAT IS CONTAINED WITHIN THE SERVICES; RATHER THAN RELYING ON THIS INFORMATION, YOU SHOULD SEEK ADVICE FROM A QUALIFIED PROFESSIONAL. WE DO NOT MAKE ANY REPRESENTATIONS REGARDING, NOR DO WE ENDORSE THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER MATERIAL OR DATABASE DISPLAYED, UPLOADED, OR DISTRIBUTED IN THE SERVICES OR AVAILABLE THROUGH LINKS IN THE SERVICES. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES, WORMS, “TROJAN HORSES,” OR OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO SUCH FEATURES. IF YOU RELY ON THE SERVICES OR ANY MATERIALS AVAILABLE THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK.
12. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL TMM, ITS AFFILIATES, AND THEIR DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, CONTRACTORS, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF YOUR USE OF THE PRODUCTS OR YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SERVICES OR ANY LINKED SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE OR SYSTEM FAILURE, OR OTHER INACCURACIES IN THE SERVICES (INCLUDING WITHOUT LIMITATION AS A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM PROVIDED IN THESE TERMS).
IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANOTHER PERSON OR ENTITY RELATED TO, ARISING FROM, OR IN ANY WAY CONNECTED WITH USE OF THE SERVICES, YOU RELEASE TMM FROM ANY CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.
THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ANY CLAIM AGAINST US SHALL BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, FOR USE OF THE SERVICES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, TMM’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TMM DISCLAIMS ALL LIABILITY OF ANY KIND ARISING FROM THE UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONAL INFORMATION.
13. Arbitration of Claims
Any claim that you might have against TMM must be resolved through binding arbitration before the American Arbitration Association using its Commercial Arbitration Rules and must be brought within one year of the claim arising. You understand and agree that you will arbitrate with TMM in your individual capacity, not as a representative or member of a class. Your claim may not be joined with any claim of any other person, and there shall not be authority for any dispute to be arbitrated on a class-action basis.
You understand and agree that unless you can demonstrate to TMM that arbitration in New York would create an undue burden for you, any arbitration hearing will be held in New York County, New York. If your claim is successful in arbitration, TMM agrees to reimburse your reasonable attorneys’ fees and costs.
These Terms, including any materials linked from the Terms are the entire agreement between you and TMM concerning your use of the Services. These Terms supersede any prior agreements (whether oral, written, or electronic) concerning your use of the Services, including agreements with TMM’s affiliates or predecessors-in-interest.
The failure of TMM to enforce any provision(s) of these Terms or respond to a breach by any party shall in no way waive TMM’s right to subsequently enforce any of these Terms or respond to any breaches.
These Terms shall be governed by the laws of the United States and the State of New York, without reference to its choice of law rules, as if entered into by parties located in New York and performed fully therein. You agree that any claim or dispute against TMM arising out of or relating to these Terms or the use of the Services must be brought within one year after such claim or dispute first accrues. You further agree that any such claim or dispute must be brought in a court located in New York County, New York unless agreed upon by all parties, and you agree to submit to the exclusive personal jurisdiction and venue of such courts.
If any portion of these Terms is found to be invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Nothing contained in these Terms is in derogation of TMM’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by TMM with respect to such use.
TMM shall have the right to assign, transfer, and sublicense these Terms, and its rights and obligations hereunder, to one or more other persons or entities.
TMM may terminate this agreement for any reason at any time. TMM reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to and use of the Services, with or without prior notice. Sections Four (4), Six (6), Seven (7), Eight (8), Nine (9), Ten (10), Eleven (11), Twelve (12), and Thirteen (13) of these Terms shall survive such termination.
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