Terms of Use
Effective: March 5, 2010
OurHistree
OurHistree Inc. ("OurHistree," "we" or "us") operates OurHistree.com, a unique platform that gives its users the tools to build and link Histrees™ - forward looking, continuously developing multi-media records of their lives, associates, businesses and programs. These Histrees™ are meant to branch out like growing trees and form networks, called Communitrees™ of shared experiences and interests. The services we offer include an OurHistree-branded URL (the "OurHistree Site"), and other features (for example, music and video embedded players), content and applications offered from time to time by us in connection with our business (collectively, the "OurHistree Services").
This Terms of Use Agreement (these "Terms of Use" or this "Agreement") sets forth the legally binding terms for your use of the OurHistree Services. PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. By using the OurHistree Services, you signify that you have read, understand and agree to be bound by this Agreement, whether or not you are a registered member of OurHistree (a "Member"). You are only authorized to use the OurHistree Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement and save it. If you do not agree to be bound by this Agreement and to follow all applicable laws, you should leave the OurHistree Site and discontinue use of the OurHistree Services immediately. If you wish to become a Member, communicate with other Members and/or make use of the OurHistree Services, you must read this Agreement and indicate your acceptance during the registration process.
There are two types of Member of OurHistree: individuals who register to become Members for personal (i.e. non-commercial or non-charitable) purposes ("Personal Members") and persons or entities who register to become Members for either a commercial purpose or for a charitable or other beneficial purpose ("Non-Personal Members"). Certain of these Terms of Use may only apply to Personal Members and not to Non-Personal Members. In addition, a Non-Personal Member may have entered into separate contractual arrangements with OurHistree whose terms and provisions either supplement or alter these Terms of Use for that Non-Personal Member. If you are agreeing to these Terms of Use on behalf of a Non-Personal Member, you represent and warrant that you have authority to bind that business to these Terms of Use, and your agreement to these Terms of Use will be treated as the agreement of that Non-Personal Member. When used herein, terms such as "you," "your," etc. refer to any user of the OurHistree Services or accessing the OurHistree Site, whether a Personal Member, a Non-Personal Member (or any person authorized by that Non-Personal Member to have access to or use the OurHistree Services) or a non-Member user.
This Agreement includes OurHistree's policy for acceptable use of the OurHistree Services and Content (as defined in Section 7 below) that is Posted (as defined in Section 1 below) and the rights, obligations and restrictions applicable to both Members and non-Member users regarding use of the OurHistree Services and Posted Content. In order to participate in certain OurHistree Services, you may be notified that you are required to download software or Content and/or agree to additional terms and conditions from OurHistree. Unless otherwise provided by the additional terms and conditions applicable to the OurHistree Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement. You may receive a copy of this Agreement by emailing us at: Terms of Use Agreement
We reserve the right, in our sole discretion, to change, modify, add or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the OurHistree Services or the OurHistree Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the OurHistree Services or the OurHistree Site. It is your responsibility to regularly check the OurHistree Site to determine if there have been changes to these Terms of Use and to review such changes.
Posting Information
Please choose carefully the information that you Post and that you provide to other Members and users. Such information may not include the following items: telephone numbers and street addresses (in the case of individuals only), any photographs containing nudity or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter or any other form of Prohibited Content, as outlined in Section 11 below.
When used herein, the term "Post" (including variants such as "Posted", "Posting", etc.) means, for purposes of these Terms of Use, to upload, post, display, transmit, share, store, link to, published or otherwise make available on the OurHistree Site or through the OurHistree Services.
Inaccurate or Inappropriate Information
OurHistree disclaims any responsibility or liability for Postings of inaccurate or inappropriate information. Despite the prohibitions against Posting inaccurate or inappropriate information, information provided by other Members (for instance in their Histrees or Communitrees) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and our OurHistree Site assumes no responsibility or liability for this material. If you become aware of misuse of the OurHistree Services by any person, please click on the "Contact OurHistree" or the "Report Abuse" link at the bottom of the OurHistree Site pages.
Eligibility
By using the OurHistree Site, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) if you are an individual, you are 14 years of age or older; and (d) your use of the OurHistree Site services does not violate any applicable law or regulation. Your Posted information (personal Histrees, etc.) may be deleted and your membership may be terminated without warning if we believe you are an individual under 14 years of age. For individuals 14 years old or over, you are also affirming that you are either: (i) 18 years old or more; (ii) an emancipated minor; or (iii) possess legal parental or guardian consent, and that you are fully able and competent to enter this Agreement and comply with the terms of this Agreement.
Password Responsibility
When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username or password of another Member at any time or to disclose your password to any third party. You agree to notify this OurHistree Site immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
Non-Commercial Use
Unless you are a Non-Personal Member who has been granted commercial privileges in a separate agreement with OurHistree, the OurHistree Services are for your personal use only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
Collecting Names; No Spam
Illegal and/or unauthorized use of the OurHistree Services, including collecting user names and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the OurHistree Site is prohibited. Commercial advertisements by any Member (except a Non-Personal Member granted commercial privileges by us), affiliate links and other forms of solicitation may be removed from information Posted by such Member without notice and may result in termination of membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the OurHistree Site and/or Services.
User Content
"Content" means, for purposes of these Terms of Use, text, files, images, photos, audio, video, designs, ads, musical works, works of authorship, links or anything else Posted to the OurHistree Site; and "User Content" means Content Posted by a Member or other user of the OurHistree Services.
You are solely responsible for the User Content that you Post on or through the OurHistree Site and any material or information that you transmit to other Members and for interactions with other users. With respect to all User Content that you Post, you represent and warrant to OurHistree that: (i) you own the User Content so Posted or otherwise have the right to grant the license set forth in Section 8; and (ii) the Posting of such User Content does not violate the privacy rights, publicity rights, copyrights, trademarks, service marks, contract rights or any other rights of any person. In addition, if you Post any User Content, you agree to pay for all royalties, fees and any other monies owing any person by reason of any User Content so Posted by you. If you collect, access or use information relating to any user of the OurHistree Services (including information contained in any Member profile) you must obtain consent from the user and make it clear to the user that the collection, access and use is being carried out by you and not OurHistree. You agree to indemnify each Indemnitee identified in Section 14 for any improper or unauthorized use by you of any violation by you of this Section 7.
OurHistree does not endorse and has no control over User Content, and such User Content does not necessarily reflect the opinions or policies of OurHistree. OurHistree makes no warranties, express or implied, as to any User Content or to the accuracy and reliability of any User Content or any material or information that you transmit to other Members or users.
(d) Responsibility for Vendor Content. Vendor agrees that it is solely responsible for (and that OurHistree has no responsibility to Vendor or to any third party for) any Vendor Content that Vendor creates or displays in its Histree and for the consequences of its actions (including any loss or damage that OurHistree may suffer) by doing so.
Proprietary Rights in Content
OurHistree Site does not claim any ownership rights in the User Content that you Post to the OurHistree Site. After Posting User Content to the OurHistree Site, you continue to retain all ownership rights in such User Content, and continue to have the right to use such User Content in any way that you choose. When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the OurHistree Site. By Posting any User Content, you automatically grant to OurHistree an irrevocable, perpetual, nonexclusive, royalty-free, sublicensable (through multiple tiers) and transferable worldwide license to: (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reproduce, adapt, modify, edit, aggregate, translate, reformat, excerpt, prepare derivative works based upon, distribute (through multiple tiers) and otherwise exploit any User Content that you Post, subject only to any privacy restrictions previously established by you with OurHistree; and (b) use any information so Posted (including your name, likeness and image) for any purpose, including any commercial advertising, in either case on or in connection with the OurHistree Services or the promotion thereof. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire; you acknowledge, however, that we may retain archived copies of your User Content.
OurHistree Content and Content Restrictions
The OurHistree Site contains proprietary Content of OurHistree ("OurHistree Content"). OurHistree Content is protected by copyright, trademark, patent, trade secret and other laws, and OurHistree owns and retains all rights in the OurHistree Content. Provided you are eligible to use the OurHistree Site, OurHistree hereby grants you a limited, revocable, non-sublicensable license to access the OurHistree Site and to reproduce and display the OurHistree Content on the OurHistree Site (excluding any software code) solely for personal use in accordance with these Terms of Use in connection with viewing the OurHistree Site and using the OurHistree Services, provided that you keep all copyright and other proprietary notices intact. The OurHistree Site contains Content of other Members and other OurHistree licensors. Except for User Content posted by you, you may not: (a) copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, lease, loan, sell or create derivative works based upon any Content (other than User Content) appearing on or through the OurHistree Site or Services; (b) upload or republish any such Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation; or (c) engage in any other use of such Content, all of which is strictly prohibited. These Terms of Use do not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the OurHistree Site or Content Posted on the OurHistree Site, other than as specifically authorized herein, without our prior written permission is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. We may revoke this license at any time without notice and with or without cause.
Deleting Posted Content
We may delete any Content that in our sole judgment violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. OurHistree assumes, however, no responsibility for monitoring the OurHistree Site or OurHistree Services for inappropriate Content or conduct. If at any time, OurHistree Site chooses, in its sole discretion, to monitor the OurHistree Site or Services, it nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content and no responsibility for the conduct of the person submitting any such Content.
Prohibited Content
The following is a partial list of the kind of Content that is illegal or prohibited to Post on or through the OurHistree Site. OurHistree reserves the right to investigate and take appropriate legal action against anyone who, in OurHistree's sole discretion, violates this provision, including without limitation, removing the offending communication from the OurHistree Site and terminating the membership of such violator. Prohibited Content includes, but is not limited to Content that, in the sole discretion of OurHistree:- violates the law or anyone's rights, including intellectual property rights or other proprietary rights (such as rights of publicity and privacy);
- is threatening, hateful or racially or ethnically offensive;
- promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- contains nudity, pornography, violence or offensive subject matter, contains a link to an adult Website, or otherwise seeks to exploits people in a sexual or violent manner;
- solicits personal information from anyone under 18 or provides personal information about anyone, including an individual's telephone number, street address, last name, URL or email address;
- promotes information that the Member or user knows is false, misleading or fraudulent or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- promotes an illegal or unauthorized copy of another person's copy righted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices or providing pirated music or links to pirated music files;
- involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
- contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to, making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other Members or users;
- involves activities such as contests, sweepstakes, barter, advertising or pyramid schemes or commercial activities (unless specifically authorized by OurHistree);
- is alcohol-related or is for mature viewers where appropriate age-based restrictions (based on the country in which the page will be viewable) have not been set;
- includes a photograph of another person that is posted without that person's consent; or
- for band and film maker Histrees and Communitrees, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile.
Unacceptable User Practices
The following is a partial list of the kind of activity that is illegal or prohibited on the OurHistree Site and through your use of the OurHistree Services. OurHistree reserves the right to investigate and take appropriate legal action against anyone who, in OurHistree's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
- criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement or theft of trade secrets;
- advertising to, or solicitation of, any person to buy or sell any products or services through the OurHistree Site or Services, unless such activities are conducted by a Non-Personal Member pursuant to an authorization granted by OurHistree in a separate agreement with such Non-Personal Member. You may not transmit any chain letters or junk email to other Members. It is also a violation of these rules to use any information obtained from the OurHistree Site in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, OurHistree reserves the right to restrict the number of emails that a Member may send to other Members in any 24-hour period to a number which OurHistree deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email or other unsolicited communications of any kind through the OurHistree Site, you acknowledge that you will have caused substantial harm to OurHistree, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay OurHistree $50 for each such unsolicited email or other unsolicited communication you send through the OurHistree Site Services;
- covering or obscuring the banner advertisements on your Histree pages or any OurHistree Site page using HTML/CSS or any other means;
- any automated use of the system, such as using scripts to add friends or send comments or messages;
- interfering with, disrupting, or creating an undue burden on the OurHistree Site or the networks or services connected to the OurHistree Site;
- attempting to impersonate another Member or person, or falsely stating or otherwise misrepresenting your affiliation with a Member or person;
- using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
- selling or otherwise transferring your personal information or soliciting personal information (including social security numbers, credit card numbers and passwords) from other users of the OurHistree Services;
- using any information obtained from the OurHistree Site in order to harass, abuse, or harm another person;
- unless specifically approved by OurHistree, displaying an advertisement on your Histree pages, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the OurHistree Site on behalf of that person, such as placing commercial content on your Histree pages, posting blogs or bulletins with a commercial purpose or sending private messages with a commercial purpose;
- offering any contest, sweepstakes, coupon or other promotion through the OurHistree Site without OurHistree's prior written consent;
- using an iFrame or offering web search functionality on the OurHistree Site;
- using OurHistree Site Services to harm minors in any way;
- using any robot, spider or other program or device to retrieve or index any portion of the OurHistree Site, or harvest or otherwise collect information about other users without their permission for any purpose other than use of the OurHistree Site as expressly permitted herein;
- using the OurHistree Services except as expressly authorized in these Terms of Use and (in the case of Non-Personal Members) any other written agreement with OurHistree;
- using the OurHistree Site in a manner inconsistent with any and all applicable laws and regulations; or
- if you are a Non-Personal Member, using the OurHistree Services for the use or benefit of any third party (rather than your own internal business purposes).
Trademarks
OurHistree, Histree and Communitree and other graphics, logos, designs, page headers, button icons, scripts and service names of OurHistree are trademarks or trade dress of OurHistree. None of such trademarks and trade dress may be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of OurHistree.
Indemnity
You agree to indemnify and hold OurHistree, its officers, directors, shareholders, agents, employees and representatives (each, an "Indemnitee") harmless from and against any claim or cause of action brought by a third party against such Indemnitee, as well as any related damages, costs and expenses (including reasonable attorneys' fees) (a "Claim") arising out of or related to your: (a) use of the OurHistree Services or any of the applications, features, content or materials related thereto; (b) violation of these Terms of Use; (c) violation of the rights of any other person or entity; or (d) breach of the representations, warranties and covenants made by you in these terms of use. OurHistree reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify any Indemnitee, and you agree to cooperate with OurHistree's defense of any and all Claims.
Copyright Policy
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of OurHistree to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of proper notification to OurHistree Site by the copyright owner or the copyright owner's legal agent.
DMCA Notice and Take-Down Procedures
If you are a copyright owner or an agent thereof and believe any Content or other posted information infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act ("DMCA") containing the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of a copyright interest that is allegedly infringed; (ii) 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; (iii) 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 us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address; (v) a statement that you have a good faith belief that the disputed use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate and made under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Our Designated Copyright Agent to receive notifications of claimed infringement is:
Lani Thatcher
OurHistree Inc.
9663 Santa Monica Boulevard, Suite 427
Beverly Hills, California 90210
email: lani.thatcher@OurHistree.comPlease send only DMCA notices to our Designated Agent. You acknowledge that if you fail to comply with all of the above requirements of this Section, your DMCA notice may not be valid.
Other Members
You are solely responsible for your interactions with other Members. OurHistree reserves the right, but has no obligation, to monitor disputes between you and other Members.
Privacy
Your privacy is important to us. Use of the OurHistree Site is also governed by our Privacy Policy, which is incorporated into and subject to this Agreement by this reference. To review our Privacy Policy, click here.
Disclaimers
OURHISTREE IS NOT RESPONSIBLE OR LIABLE FOR ANY INCORRECT OR INACCURATE CONTENT (OTHER THAN OURHISTREE CONTENT) POSTED ON THE OURHISTREE SITE OR IN CONNECTION WITH THE COURHISTREE SERVICES, WHETHER CAUSED BY A MEMBER OR USER OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR USED IN CONNECTION WITH THE OURHISTREE SERVICES. INFORMATION CREATED AND POSTED ON THE OURHISTREE SITE MAY CONTAIN LINKS TO OTHER WEB SITES. OURHISTREE IS NOT RESPONSIBLE OR LIABLE FOR THE CONTENT, ACCURACY, AVAILABILITY, OFFENSIVENESS, OPINIONS, RELIABILITY, PRIVACY PRACTICES OR OTHER POLICIES EXPRESSED ON SUCH WEB SITES, AND OURHISTREE IN NO WAY INVESTIGATES, MONITORS OR CHECKS FOR ACCURACY OR COMPLETENESS OF ANY SUCH WEB SITES. IN ADDITION, OURHISTREE CANNOT AND DOES NOT GUARANTEE THAT SUCH WEB SITES WILL COMPLY WITH ANY OF THE RESTRICTIONS, CONDITIONS OR OBLIGATIONS THAT WE REQUIRE. INCLUSION OF ANY LINKED WEB SITE ON THE OURHISTREE SITE DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEB SITE BY OURHISTREE. IF YOU DECIDE TO USE OR ACCESS ANY SUCH WEB SITE, YOU DO SO AT YOUR OWN RISK AND YOU MAY BE REQUIRED TO AGREE TO TERMS OF USE, PRIVACY AND DATA GATHERING PRACTICES AND OTHER POLICIES APPLICABLE TO SUCH WEB SITE. PLEASE REVIEW ALL SUCH TERMS AND POLICIES CAREFULLY.
OURHISTREE TAKES NO RESPONSIBILITY FOR ANY ADVERTISEMENTS THAT ARE POSTED ON THE OURHISTREE SITE OR THROUGH THE OURHISTREE SERVICES, NOR DOES IT TAKE ANY RESPONSIBILITY FOR THE GOODS OR SERVICES PROVIDED BY ITS MEMBERS OR ADVERTISERS. OURHISTREE IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER OR USER OF THE OURHISTREE SERVICES.
OURHISTREE ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER OR MEMBER COMMUNICATION. WITHOUT LIMITING THE FOREGOING, OURHISTREE DOES NOT WARRANT THAT DEFECTS WILL BE CORRECTED OR THAT THE OURHISTREE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OURHISTREE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL OR PLAYERS CAUSED BY TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE OURHISTREE SERVICES OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO MEMBERS OR USERS OR TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE OURHISTREE SITE OR SERVICES.
YOUR USE OF THE OURHISTREE SERVICES IS AT YOUR OWN RISK. THE OURHISTREE SERVICES, OURHISTREE SITE AND ALL APPLICATIONS, FEATURES, CONTENT AND MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE OURHISTREE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OURHISTREE DISCLAIMS ALL WARRANTIES (WHETHER STATUTORY, EXPRESS OR IMPLIED), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Limitation on Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL OURHISTREE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE OURHISTREE SERVICES, THE OURHISTREE SITE OR ANY APPLICATIONS, FEATURES, CONTENT OR THIRD PARTY MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE OURHISTREE SERVICES, EVEN IF OURHISTREE OR AN AUTHORIZED REPRESENTATIVE OF OURHISTREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OURHISTREE'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL OURHISTREE'S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR YOUR USE OF THE OURHISTREE SERVICES, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS OF THE OURHISTREE SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO OURHISTREE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM, OR THE SUM OF $100.00, WHICHEVER IS GREATER.
Communications from Members
With respect to all communications you make to OurHistree Site, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and OurHistree shall have no obligation to protect your communications from disclosure; (ii) OurHistree shall be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) OurHistree shall be free to use any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
Security
You shall not violate or attempt to violate the security of the OurHistree Site. Violations of system or network security may result in civil or criminal liability. OurHistree reserves the right to investigate occurrences that may involve such violations and may involve and cooperate with government authorities in investigating such occurrences and prosecuting users who have participated in such violations.
You are responsible for maintaining the confidentiality of all passwords used to access your account and for all activity that occurs with respect to your account. If you become aware of any unauthorized use of any password or of your account, you agree to notify OurHistree immediately.
Termination and Changes to the OurHistree Services
OurHistree reserves the right to change any aspect or feature of the OurHistree Services at any time without notice, and may also introduce improvements, upgrades and updates to the OurHistree Services. You acknowledge and agree that such changes, improvements, upgrades and updates may change the appearance of Content displayed thereon. You also acknowledge that in order to implement such improvements, upgrades and updates, OurHistree may need to temporarily suspend activity on the OurHistree Site.
Bandwidth Limitation
Although OurHistree may not currently have set a fixed upper limit on the number of "hits" that your Histree or Communitree may receive or on the amount of storage space used for your Histree or Communitree content, OurHistree reserves the right to fix upper limits from time to time in its sole discretion.
Survival
The following sections will survive any termination of your use of the OurHistree Services: Section 7 (User Content), Section 8 (Proprietary Rights in Content), Section 9 (OurHistree Content and Content Restrictions), Section 11 (Prohibited Conduct), Section 12 (Unacceptable User Practices), Section 13 (Trademarks), Section 14 (Indemnity), Section 17 (Other Members), Section 18 (Privacy), Section 19 (Disclaimers), Section 20 (Limitation on Liability), Section 21 (Communications from Members), Section 22 (Security), Section 23 (Termination and Changes to the OurHistree Services), Section 26 (Dispute Resolution), Section 27 (Governing Law; Venue and Jurisdiction) and Section 28 (General).
Dispute Resolution
Except as set forth in the paragraph below, you agree that all claims and disputes between you and OurHistree that arise out of or relate in any way to these Terms of Use or your use of the OurHistree Services will be submitted to mediation before a mutually agreeable mediator with ADR Services, Inc. in Los Angeles, California. Should the mediation not succeed in resolving the matter, you agree that all such claims and disputes shall be submitted to a mutually agreeable, neutral arbitrator with ADR Services, Inc. in Los Angeles. Such arbitration shall be conducted in accordance with the rules of California Code of Civil Procedure Section 1280 et seq., and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall be neutral and unbiased. The arbitrator's decision shall be in compliance with the laws of the State of California, including the substantive law of California, but excluding the law exempting arbitrators from rendering a decision in compliance with the substantive law.
With respect to any claims or disputes you intend to bring on behalf of a class, you agree to arbitrate pursuant to the foregoing paragraph whether a class could be certified before bringing such action in a court of law. If the arbitrator refuses to certify the class, you will continue to resolve your individual claims or disputes through the procedure outlined above. If the arbitrator finds that a class should be certified, you may file the class action in a court of law, provided you waive any right to a trial by jury. Claims for injunctive or other equitable relief may also be brought in a court of law.
Governing Law; Venue and Jurisdiction
You agree that all claims and disputes between you and OurHistree that arise out of or relate in any way to these Terms of Use or your use of the OurHistree Services will be governed by the laws of the State of California (and United States federal laws applicable therein), without regard to conflict of laws principles. You further agree that you will bring any claims or disputes that are not subject to arbitration (as set forth above) in, and you submit to the exclusive jurisdiction of, the state and federal courts sitting in Los Angeles County, California.
General
No agency, partnership, joint venture or similar relationship is created as a result of these Terms of Use. No waiver, amendment or modification of these Terms of Use shall be effective against OurHistree unless contained in a writing signed by OurHistree. Unless otherwise specified, the term "including" means "including without limitation". Any failure by OurHistree to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision in that or any other instance. If, for any reason, any provision of these Terms of Use or portion thereof is rendered invalid or unenforceable, the remainder of these Terms of Use will remain in full force and effect and will be enforced to the maximum extent permissible so as to give effect to the intent of the parties. An arbitrator or court will substitute or rewrite any invalid or unenforceable term or provision to make such term or provision valid and enforceable. All communications and notices to be made or given pursuant to these Terms of Use shall be in the English language. You consent to receiving communications and notices from OurHistree at the email address you provide in registering for the OurHistree Services or otherwise elect in your account settings. These Terms of Use (together with any related agreement(s) between OurHistree and a Non-Personal Member in effect) constitute the entire agreement and supersede any prior agreement between you and us regarding your use of the OurHistree Services.
