BLABBERMOUTH.NET TERMS OF SERVICE AND CONDITIONS OF WEBSITE USE AGREEMENT
Updated as of August 14, 2013
1.1 Your access and use of the Site shall constitute Your agreement to be bound by the obligations imposed on You as a Site User and Your agreement to all of the terms and conditions of usage of the Site as they may appear herein or elsewhere in specific pages of the Site visited by You. Any such terms and conditions set forth on other pages of the Site shall be deemed incorporated by reference into this Agreement. Moreover, You agree to abide by any separate terms of service or other conditions, policies or rules imposed by any third parties whose services and/or merchandise are linked to or made available by or from this Site and, further, hereby agree to indemnify BM and its affiliates from any and all claims of violation of such separate terms of service by any third party without regard to amount. Notwithstanding the foregoing, this Agreement shall be in addition to any terms and conditions imposed up on You by other third party services that are not affiliated with or owned or controlled by this Site concerning use of their services. For example, You must be logged in to an active personal account on Facebook® in order to comment on a BLABBERMOUTH.NET CD or DVD review, and your use of such plug in is also subject to rules and policies that may be imposed by Facebook® , as well as the terms of this Agreement.
1.2 BM reserves the unilateral right to change, suspend, discontinue, modify or supplement the features and services offered at this Site, at its sole discretion, including, but not limited to, the imposition of a fee for continued access to and use of any or all features and/or services at the Site, provided, that no such fee will be imposed until notice of such imposition shall be have been posted in an update to this Agreement in the manner set forth in Article 2 herein, and until You use any such fee paid feature or service
1.3 This Site is operated and maintained exclusively from servers located in the United States of America and is not intended to subject BM to the laws or jurisdiction of any other jurisdiction, state, country or territory other than that of the United States. BM does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. If You choose to access this Site from a location outside the United States, you expressly assume the risk of, and You shall be solely responsible for, compliance with any and all laws of Your local territory or jurisdiction of access which may apply to You. BM specifically reserves the right, at any time and in its sole unfettered discretion, to limit the Site's availability, in whole or in part, to any person, geographic area, State, Country or jurisdiction.
2. Changes to Agreement
This Agreement, including but not limited to any incorporated provisions, may be modified and/or supplemented periodically. Notice by BM of any such modification and/or supplementation may be given by posting a new “Effective as of “ date on this page, or by a notice on the Site Home Page with a link to this page, at its sole discretion. You will be deemed to have agreed to the Agreement, as modified and/or supplemented, upon Your first visit and use of the Site after such updated Effective Date or, in BM’s sole discretion, Home Page notice shall have been given of such modified and/or supplemental Agreement. Should You ever refuse to agree to any modified or supplemented Agreement, Your exclusive remedy and recourse shall be to discontinue use of the Site.
3. Third Party Intellectual Property Rights and Site Performance
3.1 In an effort to do the best job it can in meeting the needs and wants of its audience on this Site, BM does and/or may incorporate and/or display and/or link (including, but not limited to, embedded links) to photos, images, videos, audio clips and text that are the intellectual property of third parties. It may also allow certain services to be provided and/or merchandise to be offered by third parties in which BM has no ownership interest. You agree that any third party, including, but not limited to, advertisers, that provided trademarks, service marks, and logos to BM retain all intellectual property and proprietary rights with respect to any of their content and of their respective trademarks, service marks, and logos appearing in this Site.
3.2 By viewing and/or using this Site, You acknowledge the validity of such third party intellectual property and proprietary rights, agree not to copy, publish, distribute, publicly perform, make derivative works or otherwise violate the intellectual property rights of such third parties and, further, hereby agree, in addition to any other indemnity provision set forth in this Agreement, to specifically indemnify BM, its principals, employees, agents and its affiliates from any and all claims of intellectual property infringement by any third party, without regard to amount.
3.3 You agree that BM is not responsible to You for — and makes no representations or guaranties regarding — the continued availability or performance of the Site, in whole or in part. BM shall not be responsible to You for any temporary unavailability of the Site or the failure of proper functioning of any particular feature or service provided on the Site, any minimum connection speeds or other technical matter affecting Site operation, storage of data or other information provided and/or stored on the Site’s servers and/or in data storage centers. By visiting this Site and/or submitting any information to the Site, You agree that BM shall not be responsible to You for any temporary or permanent loss of data or other information and that BM does not guaranty the continued availability of any portion of the Site.
4. User Responsibilities and Permitted Uses
Apart from Your compliance with Your remaining obligations under this Agreement, You specifically represent and warrant to BM that You agree to comply with the following obligations imposed pursuant to this Article 4. You acknowledge that BM is specifically relying on Your representation and warranty in this regard and You agree to indemnify BM against all claim(s), liability, damages, costs and expense, including, but not limited to reasonable attorney fees, that may be alleged or assessed against BM based on Your non-compliance. Further, you agree that Your failure to fully and timely comply with these obligations will, at BM’s sole discretion, be grounds for immediate suspension or termination of your right to use this Site, in whole or in part.
4.1 Use Restricted to Personal Non-Commercial Use: You agree and acknowledge that Your viewing of this Site, access to same, and use of the services contained therein are for Your personal, non-commercial use only ("Permitted Purposes"). You may use this Site only for the Permitted Purposes. For example, You may not (and may not authorize any other party to) (i) co-brand this Site, or (ii) frame this site without the express prior written permission of an authorized representative of BM. For purposes of this Agreement, "co-branding" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute this Site or provide the content accessible within this Site, or otherwise create the impression of ownership of the Site or affiliation with or endorsement by BM, without the express prior written consent of BM. You agree to cooperate with BM in causing any unauthorized co-branding or framing to immediately cease. The materials, files and content on and accessed through this Site contain copyrighted content and material and You specifically agree that You will make no reproduction, publication, distribution, modification, re-purposing, adaptation or other use of any content or materials on this Site, in whole or in part, nor otherwise exploit same for sale or other commercial benefit whatsoever, without the prior written consent of BM. Nor shall You take any actions with respect to such content and material that may expose BM to criminal liability or to civil liability to third parties.
4.2 Security: You are prohibited from using any services or facilities provided in connection with this Site to compromise security or other features or functionality of the Site or to cause damage to other Site Users. You are responsible for implementing sufficient procedures and safeguards to satisfy your particular requirements to protect against any data or other loss at your computer or other device you use to access the Site. BM does not assume any responsibility or risk for your use of the Internet. You take full responsibility for all equipment used to access and use the Site, as well as for protecting same against viruses, worms, Trojan horses, malware and other software or other code that may contaminate or that may cause damage to Your hardware or other equipment used to access the Site or your data. To the extent that downloads or streaming or embedded media are made available at the Site, You hereby agree that Your using and/or accessing of content of any kind, whatever its source, from the Site is done at Your sole election and at Your own risk, which You hereby specifically assume. For further information on this subject, BM’s disclaimers of warranty are further described below in Article 9.
4.3 User Supplied Content and Information: Any news story or comments to CD/DVD reviews (“collectively “USC”) submitted by You are completely voluntary and without entitlement to compensation or attribution of any kind. To submit news for BM’s consideration, please email us in the manner described in the “Submit News” page and, to request credit for any accepted news story, You must provide the information set forth in the “Submit News” page. In order to propose a comment on CD or DVD reviews, You will need to be logged into an active Facebook® account. You agree that BM is under no obligation to accept, post, display, retain or use any USC that You submit and BM reserves the right to edit, refuse or to subsequently remove, block or hide such UMC at any time in its sole discretion. You agree that BM has no duty of confidentiality or fiduciary duty to You, express or implied, concerning Your USC. You represent and agree that, by using, submitting news or transmitting comments to this Site, You shall be conclusively deemed to be representing and declaring, under penalties of perjury that: You are over 13 years of age; and that any identifying information provided by You, whether for purposes of submissions or otherwise, shall be truthful and accurate. By submitting any USC, You also represent that: You own or otherwise control all necessary proprietary rights needed to submit same; You have not infringed any intellectual property or other proprietary rights of third parties; neither comments to CD or DVD reviews, nor news postings necessarily reflect the viewpoint of BM and that, by allowing You to display a comment or by using news You submit, BM does not thereby endorse, adopt or guarantee the accuracy of, any such submission or comment. You understand that, when You post a comment to a CD/DVD review, such information, as well as your Facebook® screen name and/or associated profile photo, will become publicly available on the Site. Similarly, should BM grant Your request for submitting a news story, any such personal information may be disclosed on the Site for public view.
4.4 License of User Supplied Content: By submitting a news story or comment to CD/ DVD Reviews for consideration, You shall be deemed to have authorized and granted BM a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and sub-license all content, remarks, suggestions, ideas, comments, graphics, files, images or other information communicated to BM by You by email or through this Site (together, the "USC"), and to incorporate any USC in other works in any form, media, or technology now known or later developed. BM will not be required to treat any USC as confidential, and may use any USC in its business (including without limitation, for products or advertising) without incurring any liability for royalties, compensation, or any other consideration or credit of any kind. You agree that You are not entitled to any notice in this regard whatsoever and that, by contributing such USC, You waive the right to make any claim against BM relating to such USC, including, without limitation, unfair competition or breach of implied contract. You hereby assume the risk that third parties or other Site Users may refer or respond to comments you contribute or otherwise attempt to communicate with You or about You based on any Identifying Information you have voluntarily provided. You also permit any user of the Site to access, display, view, store, distribute, perform, reproduce and prepare derivative works of such USC that You have submitted, placed, posted or have allowed to be posted on the Site.
4.5 Avoidance of Defamatory, Infringing or other Unacceptable Content: You shall not attempt to submit anything or post any comment that: infringes any intellectual property or other right of any entity or person, including, but not limited to, violating anyone's copyrights or trademarks or their rights of publicity or trade secrets; advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or solicitations); does not pertain directly to the subject matter of the Site; constitutes or advocates illegal activity or discusses an intent to commit an illegal act; may be considered threatening, offensive, inflammatory, illegal, abusive, obscene, defamatory, racist, homophobic, pornographic or profane; includes programs which contain viruses, worms and/or Trojan horses or any other malicious computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications; violates any policy or regulations established from time to time regarding use of this Site or any networks connected to this Site; contains hyper-links to other sites that contain content that falls within the descriptions set forth above; or impersonates or misrepresents Your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content; or which could give rise to any civil or criminal liability of BM, its principals, employees, agents and/or affiliates under pertinent law. To report any violations of this provision, please send an e-mail to blabbermouthinbox(@)gmail.com with pertinent details. User understands that BM’s use of any news submitted or DVD or CD Review comment(s) by You does not constitute any adoption by BM of the opinion, information or other content contained in such submission(s) or comment(s). BM shall not be liable in any manner as the speaker, publisher or distributor of same and You hereby agree to indemnify BM against any and all cost, expense and damage, including, but not limited to, reasonable legal fees incurred by BM as a result of any claims by one or more third parties regarding same, including, but not limited to, any claims relating to defamation or otherwise.
5. Content Not Directed at Children
This Site is not directed at children under the age of 13. BM does not consider this Site suitable for children under 13, such children are not an intended audience of this Site, and BM shall neither knowingly or intentionally collect personally identifiable information from anyone under the age of 13. If You are under the age of 13, You do not have permission to use this Site and must discontinue such use immediately. You represent and agree that, by using, submitting news or posting comments to this Site, You shall be conclusively deemed to be representing and declaring, under penalties of perjury that You are over 13 years of age. Notwithstanding the foregoing, the subject matter of this Site and third party materials contained on it may sometimes be considered to be Mature content and may be distasteful or offensive to some individuals over the age of 13. If You are such an individual over the age of 13, You agree that your sole recourse and remedy is to discontinue use of the Site.
6. Removal and Termination
You acknowledge and agree that Your use of the Site, Your access to any features offered at the Site, and any comments or news submissions may be blocked, hidden, suspended, terminated and/or canceled, at the sole option of BM, should BM, in its sole opinion, conclude that User has violated any of its obligations imposed under this Agreement or for any other reason or no reason, in BM’s sole discretion. Further You agree that BM shall have the right to terminate Your access to the Site if You are found to be a repeat copyright infringer.
7. Legal Process
BM shall have the right, in its sole discretion, to provide or forward or disclose any information You have provided, or that BM has received or collected about You, as BM may consider necessary or desirable in response to legal process or demand or in order to comply with any statute, regulation, subpoena or third party complaint, or in order to investigate any claim of intellectual property or other infringement or unlawful activity. BM reserves the right to fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing BM to disclose the identity of anyone posting, publishing or otherwise making available any materials that are believed to violate this Agreement. By accepting this agreement You waive any claims and hold BM harmless from any claims resulting from any action taken by BM during or as a result of disclosures as described in this Article.
8. Copyright Infringement and DMCA Agent
8.1 BM reserves the right to edit, disable, hide, block or remove any USC posted to the Site by You, in its sole discretion, where BM believes in good faith that any such USC posted appears to be copyright infringing, regardless of whether or not actual infringement is ultimately established. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. BM will investigate and take appropriate action in response to a valid DMCA Take Down Notice and, in an appropriate case, will block access to or remove allegedly copyright infringing content, terminate access for repeat copyright infringers, and otherwise take appropriate steps required by the DMCA. If the provider of the blocked or removed content believes in good faith that a DMCA Take Down Notice was wrongly filed, the DMCA permits a counter-notice to be sent to BM and BM will take appropriate actions, as required by the DMCA in such event. Notices and counter-notices sent must comply with the then-current statutory requirements imposed by the DMCA. All DMCA Notices and counter-Notices should be sent to BM’s registered copyright agent at the following address in the manner required by the DMCA :
Copyright Agent c/o Hollander and Company LLC
5 Penn Plaza - 19th Floor
New York, NY 10001
Telephone Number: 212-576-1061
Facsimile Number: 212-576-1078
Email: [email protected]
8.2 Other Intellectual Property Infringement: Any complaints regarding forms of intellectual property infringement other than copyright infringement, such as, for example, trademark infringement, should be sent to [email protected]m.
8.3 To report any abusive, obscene, defamatory, racist, homophobic or threatening comments, or anything that may violate any applicable laws, please send an e-mail to blabbermouthinbox(@)gmail.com with pertinent details.
9 Indemnification, Limitation on Liability and Disclaimer
9.1 In addition to specific indemnities set forth above in this Agreement, You further agree to indemnify BM, its successors and assigns, their, employees, agents, officers, directors, members, managers, web hosting and/or service provider(s) and other contractors, affiliates, licensors, licensees, content providers, (the "Indemnified Parties") harmless from any breach of this Agreement by You, including any use or submission of content other than as expressly authorized in this Agreement. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and You agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys' fees of the Indemnified Parties in connection therewith or arising out brought by governmental authorities third parties arising out of Your use of the information accessed from this Site.
9.2 LIMITATION ON LIABILITY : BM, ITS SUCCESSORS AND/OR ASSIGNS, THEIR EMPLOYEES, AGENTS, OFFICERS, MANAGERS, DIRECTORS AND MEMBERS, AFFILIATES, LICENSORS, LICENSEES, WEB HOST AND/OR SERVICE PROVIDERS, AND ANY OTHER CONTRACTORS, WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF GIVEN PRIOR NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF BM , ITS SUCCESSORS AND/OR ASSIGNS, THEIR EMPLOYEES, AGENTS, OFFICERS, MANAGERS, DIRECTORS AND MEMBERS, AFFILIATES, LICENSORS, LICENSEES WEB HOST AND/OR SERVICE PROVIDERS, AND ANY OTHER CONTRACTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED $100.
9.3 DISCLAIMER: YOUR USE OF THIS SITE IS AT YOUR OWN RISK. THE CONTENT AND FEATURES AND LINKS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. BM DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. BM DOES NOT WARRANT THAT THE FEATURES, CONTENT OR LINKS CONTAINED IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BM DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND BM. MAY MAKE SITE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT BM, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION TO YOUR EQUIPMENT AND/OR EQUIPMENT USED TO ACCESS THE SITE IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR ITS CONTENT. BM MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
10. Trademark and Site Copyright
"Blabbermouth.net" is a registered trademark of Blabber LLC and the Blabbermouth.net logo is a trademark of Blabber LLC. Except for intellectual property of third parties, BM claims all right, title and interest in the Site and its incorporated intellectual property, including, but not limited to, text, articles, images, graphics, illustrations, designs, icons, logos, photographs, videos and audio files that are part of the Site (collectively, the "Content") which are protected by copyright and owned, controlled or licensed by Blabber LLC.
12. Choice of Law, Jurisdiction and Miscellaneous
12.1 Choice of Law: This Site is operated and maintained from servers exclusively located in the United States of America. You agree that this Agreement and the contractual relationship created thereby between BM and You shall be exclusively governed by the laws of the State of New York, notwithstanding and without regard to its conflict of law provisions and any other principles of choice or conflicts of laws or any different or contrary laws applicable in the jurisdiction or territory from which You access this Website.
12.2 Jurisdiction: Should BM commence legal action(s) or proceeding(s) against You in connection with any dispute(s) between or involving You and BM ( in whole or in part) arising out of this Agreement, Your use and access of this Web Site, USC posted to the Site by You, disputes involving claims made by third parties based on same, or otherwise arising out of the subject matter thereof, You irrevocably agree to submit to personal jurisdiction in a federal or state court of competent jurisdiction of BM’s choosing located in the Borough of Manhattan, County, City and State of New York. Further, should You choose to commence legal action(s) or proceeding(s) against BM on any of the aforementioned grounds, You irrevocably agree to commence and litigate same in a federal or state court of competent jurisdiction located in the Borough of Manhattan, County, City and State of New York. Exclusive venue for any legal action(s) or proceeding(s) set forth above is hereby agreed to be in a court of competent jurisdiction in the Borough of Manhattan, City and State of New York and that, in any such legal action(s) or proceeding(s), both parties hereby waive the right to jury trial as between each other.
12.3 Severability: If any part of this Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
12.4 No Waiver. No delay or failure by BM to enforce any of its rights under this Agreement or any other terms and conditions found elsewhere on this Website shall operate as a waiver thereof.
12.5 Entire Agreement: Except as otherwise provided by law, this Agreement constitutes the entire agreement between BM and You relating to this subject matter, until and unless updated with notification, as set forth above.