The Service (1) gives individual persons ("Members") that open an account ("Member Account") with SOUTHfellini, llc ("Company") (hereinafter, individuals that simply browse the Website ("Visitors") and "Members" shall be collectively referred to as "End User(s)") the ability: (a) to view (i) rich media information about comic books not otherwise available for viewing on the Website and location of area retailers with comic book availability and other information offered by the Service, and (ii) profiles of other Members; and (b) to create pull lists of comic books for area retailers using the Website or downloadable software ("Software"), in accordance with the terms of the end user license agreement ("End User License Agreement" or "EULA"); and (2) gives retailers that subscribe to the Service ("Retailers"): (a) the ability to view certain rich media information about comic books not otherwise available for viewing on the Website and the pull lists that are created by the Members of the Service and receive other information about Member use of the Website and Member requests; and (b) the opportunity to be a contact as an area retailer with comic book availability, in accordance with the terms of a Retailer Subscription Agreement ("Retailer Subscription Agreement").
3. Company Website Materials: As between Company and You, except for any End User Content offered by You as a Member pursuant to the terms of the EULA or any Retailer Content offered by You as a Retailer pursuant to the terms of the Retailer Subscription Agreement, all other text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, information and computer code, including, but not limited to, the design, structure, selection, coordination, expression, "look and feel" and arrangement of any other materials and information contained on the Website are owned, controlled or licensed by or to Company and are protected by trade dress, copyright, patent and trademark laws and various other intellectual property rights and unfair competition laws under United States and foreign laws and international conventions (collectively, all of the aforementioned Website materials shall be referred to as the "Company Website Materials"). The Company Website Materials available via this Website are provided to You "AS IS" and for Your personal viewing use only on the Website or via the Software and Service, as applicable, and may not be copied, reproduced, retransmitted, distributed, disseminated, sold, broadcast, performed, made available to third parties or circulated to anyone or exploited for any other commercial or noncommercial purposes without the express prior written consent of Company, except that Your browser may "cache" images on the Website solely for browsing purposes. Except as expressly provided herein, You are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Company Website Materials or any other content on the Website, and Company explicitly reserves any and all rights not expressly granted hereunder. Other than as expressly permitted herein, You agree not to engage in the use, copying, or distribution of any of the Company Website Materials obtained through the Website. You further agree not to circumvent, disable or otherwise interfere with security related features of the Company Website or any other features that prevent or restrict the use or copying of any Company Website Materials.
4. Other Permitted Uses and Restrictions of the Company Website:
4.1 In addition to any other obligations set forth in this Agreement, You hereby agree not to use or launch any automated system, including without limitation, any "deeplink", "page-scrape", "robot," "spider," "offline readers," or other automatic device, program, algorithm or methodology, that accesses, acquires, copies or monitors any portion of the Website or the Service (or any content of the same) in a manner that sends more request messages to the Company servers in a given period of time than a human can reasonably produce in the same period via a conventional on-line web browser, or in any way reproduce or circumvent the navigational structure or presentation of the Website or the Service (or any content of the same), to obtain or attempt to obtain any materials, documents or information through any means not purposefully made available through the Website. Company reserves the right to prevent any such activity. Notwithstanding the foregoing, Company grants the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and Company reserves the right to revoke these exceptions either generally or in specific cases.
4.2 You agree that You will not attempt to gain unauthorized access to any portion or feature of the Website or the Service or any other systems or networks connected to the Website or the Service or to any Company server or the server of any End User or Retailer, or to any of the services offered on or through the Website by hacking, password mining or any other illegitimate means.
4.3 You agree that You may not use, nor allow others to use the Website or the Service (either directly or indirectly): (i) to attempt to or actually disrupt, impair or interfere with, alter or modify the Website or the Service or any information, data or materials posted and/or displayed by Company or anyone else; (ii) to act in a way that affects or reflects negatively on Company, the Website or the Service, or anyone else; or (iii) to harvest, collect or attempt to collect any information from others including, without limitation, personally identifiable information such as account names and numbers, without such party's prior consent.
4.4 You agree that You are prohibited from violating or attempting to violate the security of the Website or the Service, including, without limitation: (i) accessing data not intended for You or logging onto a processor, communications or access device or account which You are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of the Website or the Service or to breach any implemented security or authentication measures, regardless of Your motives or intent; or (iii) attempting to interfere with or disrupt the Website or the Service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse. Any such violations of system or network security by You may result in civil or criminal liability to You. Company reserves the right to investigate occurrences, which may involve such violations and Company may involve, provide information to and cooperate with, law enforcement authorities in prosecuting any party who is involved in any such violations.
4.5 You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal that You send to Company on or through the Website or any service offered through the Website. You may not pretend that You are, or that you represent, someone else or impersonate any other individual or entity.
5. Enforcement of Intellectual Property Rights: You acknowledge that Company will aggressively enforce its intellectual property rights as stated herein to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution, as applicable.
8. Company Website Availability: Company will make reasonable efforts to keep the Website operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of Company may, from time to time, result in temporary interruptions to the Website. In addition, Company reserves the right at any time and from time to time to modify or discontinue (on a temporary or permanent basis) certain functions of the Website, with or without notice. You agree that Company shall not be liable to You or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Website.
9. Third-Party Links: This Website (or the Service) may be linked to other sites on the World Wide Web that are not under the control of or maintained by Company. Such links do not constitute an endorsement by Company of any such sites. You acknowledge that Company is providing these links to You solely as a convenience to You, and You agree that Company is not responsible for the content or links displayed on such sites to which You may be linked. Company does not endorse or make any representations about these websites, or any information, materials, or products found thereon. If You access any of the third-party websites linked on this Website, You do so at Your own risk.
10. Third-Party Materials on the Website: This Website may contain materials submitted by third-parties. Any such materials are provided solely as a convenience to You. Company has not tested or evaluated these materials and does not endorse or make any representations about these materials or Your use thereof. If You use any of the third-party materials, You do so at Your own risk. In no event shall Company be liable for any loss, claim, damages, or costs that may arise in connection with Your use of these materials.
11. Inaccuracies on the Website: Your use of the Website is at Your own risk. The Website may include inaccuracies or errors that may affect the quality of the information provided on the Website and a possibility exists that unauthorized additions, deletions and alterations have been made to the Website by unauthorized third-parties. The information has not been independently verified or authenticated in whole or in part by Company. Although Company attempts to ensure the integrity of the Website, it makes no guarantees whatsoever as to the completeness, correctness or accuracy of the Website. More specifically, Company does not warrant the accuracy or timeliness of the Company Website Materials and Company has no liability for any errors or omissions in the information provided. Furthermore, the prices and availability of products and/or the services available via the Website may at any time change without notice to You. In the event that such an inaccuracy arises, please inform us so that it may be corrected.
12. Articles and Commentary: In addition, this Website or the Service may post articles and commentary containing information in the form of news and/or opinions that, unless otherwise stated therein, should not be construed as specific advice or instruction from Company or official expressions of Company. ?Company does not warrant, either expressly or by implication, the factual accuracy of the articles posted, nor does it adopt any statement as its own, or warrant any news or opinions offered by the author of said articles. Although Company believes all statements made in the articles to be reliable and accurate based upon representations made by the authors themselves, Company cannot guarantee that such statements are reliable and accurate and Company accepts no fault or liability for any error or omission with respect to such articles.
13. DISCLAIMER OF WARRANTIES: YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE AND THE SERVICE IS AT YOUR SOLE RISK. THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE AND THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE AND THE SERVICE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE WEBSITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE OR THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. COMPANY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE OR THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
14. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY, ITS OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES AND/OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOSS OF DATA (EVEN IF ADVISED OF THE POSSIBILITY THEREOF), ARISING IN ANY WAY FROM THE CONTENT OR INFORMATION OFFERED THROUGH THE WEBSITE, THE COMPANY WEBSITE MATERIALS, THE SOFTWARE OR THE SERVICE. DESPITE THE FOREGOING LIMITATION OF LIABILITY FOR DAMAGES, IF A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION DECIDES TO AWARD MONETARY DAMAGES TO YOU FOR ANY CLAIM OR CAUSE OF ACTION ARISING FROM THE SAME, THE AMOUNT OF MONETARY DAMAGES FOR SUCH CLAIM OR CAUSE OF ACTION SHALL BE NO GREATER THAN ONE HUNDRED DOLLARS ($100.00).
16. Local Laws; Export Control: By entering this Website, You acknowledge and agree that Company controls and operates this Website from its headquarters in the United States of America and that this Website is intended for viewing in the United States and Company makes no representation that the materials are appropriate or will be available for use in other locations outside of the United States. Unless otherwise explicitly stated, all marketing or promotional materials found on this Website are solely directed to individuals, companies or other entities located in the United States. Company reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Website is void where prohibited. If You use this Website from outside the United States of America, You are entirely responsible for compliance with applicable local laws and other applicable laws. You may not use this Website in violation of United States export laws and regulations.
20.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 20.
20.4 Any provision which must survive in order to allow Company to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or Your use of the Website, the Company Website Materials, the Software and the Service, regardless of form or the basis of the claim, may be brought by You more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and You hereby waives any longer statute of limitations that may be permitted by law.