(Last updated: March 15, 2013)
This Agreement (“Agreement”) is made between EARTH911, INC. (“EARTH911”) and the person (“you,” “your” or “yours”) that has accessed, used or signed up for Earth911’s products, applications, software, services, emails or website (collectively “Services”). By accessing, using, continuing to receive or downloading any of the Services, you are agreeing to comply with and be bound by all the terms of this Agreement. You may not access or use the Services if you are unwilling or unable to be bound by this Agreement.
- You represent that you are a person over thirteen (13) years of age, that you may legally enter into this agreement and that you agree with all the terms of this Agreement. You represent you will not use the information contained in the Services to compete with Earth911.
- Earth911 grants you permission to use the Services subject to the restrictions in this Agreement. Your use of the Services is at your own risk; including without limitation the risk that you might be exposed to content that is offensive, indecent, inaccurate, objectionable or otherwise inappropriate. The materials and information appearing on the Services belong to Earth911 or its licensors and you may not make or transfer any copies of the Services or any such materials or information contained or provided from the Services. The foregoing license shall terminate immediately and without prior notice for any breach of this Agreement by you. You agree not to modify the Services, remove any notices or markings on the Services, or reverse compile, reverse assemble, reverse engineer or otherwise attempt to learn, use or disclose the trade secrets contained in the Services or permit any third party to do any of the foregoing. There are no implied licenses under this Agreement.
- You agree to use the Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- You agree not to frame any content on the Services or attempt to present any portion of the Services as belonging other than to Earth911 or its licensors. You agree not to use the Services for unlawful or wrongful purposes, including, but not limited to, distributing material that: (i) is owned by someone else; (ii) is illegal, obscene, libelous, pornographic, vulgar, harassing or discriminatory; (iii) advocates any violent or illegal act, including without limitation the illegal consumption of drugs or alcoholic beverages; (iv) is protected as a trade secret; (v) is an invasion of the privacy of a third party; or (vi) constitutes “Spam” or other illegal or unwanted content. You also agree to comply with all Earth911 rules and regulations and all statutes and other governmental requirements. You agree that your use of any content feeds available through the Services shall be solely for your personal, non-commercial purposes, and that you shall attribute Earth911 as the source of such content feeds. Earth911 may terminate your access to such content feeds at any time and for any reason or no reason.
- You will not: a) engage in any unauthorized use of the Services (including, without limitation, political campaigning, advertising, marketing, solicitations, promotions, resale or other commercial uses); b) transmit or otherwise make available any content that (i) you do not have the right to provide or transmit using the Services (ii) may expose Earth911 or its affiliates, licensors or users to any harm or liability or (iii) is unlawful, untrue or otherwise objectionable; c) transmit or otherwise make available any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; d) copy any portion of the Services or any underlying content or source code; e) attempt to discover or re-create the source code to any software; f) distribute the software or source code behind the Services to any third party; g) except as otherwise approved in writing by Earth911, make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to any portion of the Services; h) remove, alter, or obscure any copyright or other proprietary notices of Earth911 or its affiliates or licensors in any portion of the Services; i) use any type of automated means to utilize the Services; j) access without authorization any networks, systems, or databases used in providing the Services or any accounts associated with Services, or to access or use any information therein for any purpose; k) attempt to probe, test, hack, or otherwise circumvent any security measures; l) violate any requirements, policies, procedures, or regulations of any network connected to the Services; m) use the Services in any manner that could damage, disable, overburden, or otherwise impair the Services (or the networks connected to the Services); n) interfere with or disrupt the use and enjoyment by others of the Services; o) falsely state, impersonate, or otherwise misrepresent your identity; p) use the Services in any manner that exposes Earth911 to any harm or liability of any nature; q) use the Services in violation of any federal, state, or local law, rule, or regulation, whether now existing or enacted in the future; r) use the Services for marketing purposes, including making telemarketing calls, transmitting unsolicited paper mail, facsimile messages, text messages, email messages, or any other type of messages; s) compile information from the Services in a database and store such data for any future use; t) match information from the website from third party databases to append, verify or create a new database; u) publish, transmit distribute, or resell any information from the Services; or store via physical media, data mine, or otherwise aggregate information or data made available through the Services for any purpose outside the scope of this Agreement or any other applicable agreement between you and Earth911.
- You acknowledge and agree that the Services are furnished during the term of the Agreement for your personal use and not for redistribution. You agree that you shall not directly or indirectly “scrape,” “spider,” monitor or otherwise seek to obtain the contents of any database contained at or accessible through the Services. You agree that Earth911 shall be free to use, display, copy, modify and disclose all information received from you during and after the term of this Agreement, as Earth911 sees fit.
- You acknowledge and agree that Earth911 (or Earth911’s licensors) owns all legal right, title, and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless Earth911 has otherwise agreed in writing, nothing in this Agreement gives you a right to use any of Earth911’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES AND ANY SERVICES PERFORMED OR PROVIDED BY THE SERVICES (“SERVICES”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY WHATSOEVER. ALL EXPRESS, IMPLIED OR STATUTORY CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, SECURITY, FREE FROM ERROR, PERFORMANCE OR NON-INFRINGEMENT, ARE DISCLAIMED. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM EARTH911 OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
- IN NO EVENT SHALL EARTH911 BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY INJURY TO PERSONS OR PROPERTY, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF PRIVACY FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF EARTH911 EXCEED THE SUM OF FIFTY DOLLARS ($50.00), REGARDLESS OF THE CAUSE OF ACTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL EARTH911 HAVE ANY LIABILITY WHATSOEVER FOR ANY THIRD PARTY IDEAS OR OPINIONS EXPRESSED ON THE APP.
- You agree to indemnify, defend and hold harmless Earth911, its parent, subsidiaries, directors, officers, employees, agents, customers and affiliates from and against any claims, demands, threats, suits, proceedings, losses or liabilities arising from or related to any breach of this Agreement by you.
- Any of the Services may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
- Should any provision of this Agreement be declared void or unenforceable, the validity of the remaining provisions shall not be affected thereby. Failure on the part of Earth911 to insist on strict performance of the terms, covenants, and conditions of this Agreement shall not be deemed a waiver of any of the provisions hereof.
- Earth911 may revoke or terminate the license granted above in its sole discretion at any time. Without limiting the generality of the foregoing, Earth911 may revoke or terminate the license if you (i) breach any obligation in this Agreement or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the Services or any other Earth911 service, or (iii) use the Services other than as specifically authorized in this Agreement without Earth911’s prior written permission.
- By sending Earth911 any ideas, photographs, drawings, videos, suggestions, documents or proposals (“Feedback”), you agree that (a) your Feedback does not contain the confidential or proprietary information of third parties, (b) Earth911 is under no obligation of confidentiality, express or implied, with respect to the Feedback, (c) Earth911 may have something similar to the Feedback already under consideration or in development, and (d) you grant Earth911 an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback. Earth911 shall have no obligation to you of any kind, monetary or non-monetary, with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation.
- You understand and agree that the Services may have links to third-party sites or resources not controlled or affiliated with Earth911. Earth911 is not responsible in any way for, and does not make any representation, warranty or guarantee regarding, any third-party website and resources which may be accessed through the Services. Additionally, Earth911 does not endorse or adopt and is not responsible or liable for: (i) any content, advertising, goods or services, or other materials available on or from such websites or resources; or (ii) any damage or loss caused or alleged to be caused by or in connection with use or reliance on any such content, advertising, goods, services, or other materials on or available from such websites or resources. You are solely responsible for your actions and consequence of your visiting such sites.
- Earth911 may provide Services on websites operated and owned by third parties. These other websites, products, or services may operate under a different user agreement than the Services (the terms and conditions of other such user agreements are not affected in anyway by this Agreement nor is this Agreement affected by such other user agreements). Earth911 encourages you to review applicable policies and agreements when you visit any website or use any product or service including these Services.
- This Agreement shall be governed by the laws of the State of Arizona without regard to conflicts of laws principles. The State and Federal courts located in Maricopa County, Arizona, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of Earth911. Any purported assignment without such permission shall be void. Earth911 may assign this Agreement, including any rights hereunder, by operation of law or otherwise, in whole or in part, without notice. Any waiver of any rights of Earth911 under this Agreement must be in writing, signed by Earth911, and any such waiver shall not operate as a waiver of any future breach of this Agreement. Earth911 may terminate this Agreement upon notice for any reason or for no reason. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous, conflicting or additional communications, negotiations or agreements with respect thereto.
- DMCA AND POSTINGS
If you are a copyright owner or an agent thereof and believe that any content on the Services (“Postings”) infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Earth911’s Copyright Agent (identified below) with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Earth911 to locate the material;
- Information reasonably sufficient to permit Earth911 to contact you, such as an address, telephone number or email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
EARTH911’s designated Copyright Agent to receive notifications of claimed infringement is: Mr. Tony Ash, email: email@example.com, fax: (480) 889-2660. Only claimed infringement notifications may be sent to the Copyright Agent.
If you believe that your Posting that was removed or disabled is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your Posting, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the Posting that has been removed or to which access has been disabled and the location at which the Posting appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Posting was removed or disabled as a result of mistake or a misidentification of the Posting; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Phoenix, Arizona, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
Please direct any questions or comments about the Services to:
1375 N. Scottsdale Rd. Suite 140
Scottsdale, AZ 85257