TERMS OF — USE AND SERVICES AGREEMENT
(Effective as of July 2014)
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (referenced herein with “you” or with “your”) AND OH MAMA, LLC (referenced herein as “OM”). YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS TERMS OF — USE AND SERVICES AGREEMENT (“Agreement”) BECA– USE THEY GOVERN YOUR ACCESS TO AND — USE OF THE WEBSITE LOCATED AT WWW.OHMAMA.CO (“Site”) AND THE OH MAMA MOBILE APPLICATION (“App,” together with the Site, the “Services”). OM IS WILLING TO LICENSE TO YOU THE RIGHT TO — USE THE SERVICES ONLY ON THE CONDITION THAT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU ARE HEREBY INSTRUCTED TO STOP — USE OF THE SERVICES.
1. LICENSE GRANT. Subject to your continued compliance with the express terms and conditions of this Agreement, OM hereby provides to you a revocable, limited, royalty-free, non-exclusive, non-transferable, and non-sublicenseable license to access and use the Services solely for your personal use. You may print materials and information from the Services solely for your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials. All rights not expressly granted under this Agreement are hereby reserved. Accordingly, you are hereby prohibited from using the Services in any manner that is not expressly and unambiguously authorized by the terms and conditions of this Agreement.
2. — USER CONTENT. The Services may contain certain features and interactive functionality (each, a “User Content Area”) that allow you to post and/or upload to the Services photographs and/or other user generated content (collectively, “User Content”). To the extent the Services contain any such User Content Area, you hereby agree that you will not upload, post, display, or transmit any of the following in any User Content Area:
- User Content that violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others;
- User Content that is offensive to the online community, including, without limitation, expressions of obscenity, bigotry, racism, abusiveness, vulgarity or profanity.
- User Content that violates any law or engages in any activity that would constitute any criminal offense or give rise to any civil liability;
- User Content which contains advertising or any solicitation with respect to products and/or services;
- User Content in which you impersonate any person or entity, including, but not limited to, any OM employee, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- User Content that interferes with any other user’s right to privacy;
- User Content, software or other materials which contain a virus or other harmful or disruptive component;
- Unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam” or any other form of solicitation; or
- User content that violates some other contractual or fiduciary rights, duties or agreements by which you are bound;
- User Content protected by copyright, trademark, trade secret, rights of publicity or other proprietary right of any third party (collectively, “Third Party Rights”) without the prior express written permission of the applicable right holder. The burden of determining that all User Content is not subject to any Third Party Rights rests exclusively with you under all circumstances. Accordingly, you shall be solely liable for any or damage or costs resulting from any User Content that actually or alleged infringes any Third Party Rights. Any person determined by OM in its sole discretion to have violated any Third Party Rights may be barred from submitting or posting any further User Content.
OM hereby reserves the right to remove any User Content posted, submitted and/or uploaded to the Services in its sole discretion. You hereby agree that the foregoing restrictions set forth this Section 2 shall also apply to any User Content that you post, submit and/or upload to any social media or other webpage directly accessible through the Services. Moreover, you hereby agree that you are solely responsible for any liability arising from or related to your use of any User Content Area and/or any of your User Content.
3. LICENSE TO — USE — USER CONTENT. You hereby agree that you have no proprietary interest in any User Content Area. You retain ownership of your rights in any User Content you post to the Services, subject to the rights that you grant to us as described in this Section 3. By submitting User-Content to a User Content Area or by otherwise using the Services to transmit or display any User-Content, you automatically grant OM a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, transmit, perform, and display such content or information (in whole or in part) worldwide and/or to incorporate such content into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. At any time, you may modify or remove from the Services any User Content, including, without limitation, photos, graphics, audio or video that you have submitted or made available for inclusion on or through the Services (but not, for clarity, any Submissions you have made to the Services pursuant to Section 3). Your removal of such User Content from the Services will terminate OM’s license to such User Content. Notwithstanding the foregoing license, you hereby agree that by merely permitting your User Content to be posted, displayed, submitted and/or uploaded to the Services, OM shall not be considered a publisher of such User Content under any circumstances, and is merely functioning as an intermediary to enable you to post, display, submit and/or uploaded any User Content. In addition, you also hereby agree that OM has no control over the extent to which any User Content may be used, modified and/or distributed by any party or person once such content is posted, displayed, submitted and/or uploaded on the Services. Moreover, OM assumes no responsibility for the deletion of or failure to store any User Content.
4. REPRESENTATIONS AND WARRANTIES. By downloading, accessing, or using the Services, you represent and warrant that (i) you are at least 18 years of age; (ii) you will at all times provide true, accurate, current, and complete information when submitting information to OM through the Services; (iii) you will at all times comply with the terms and conditions of this Agreement including, without limitation, the terms set forth in Sections 1 (License Grant) and 2 (User Content); (iv) you have all necessary rights to make any User Content; and (v) that none of your User Content will violate any right(s) of a third party including, without limitation, any privacy, publicity, intellectual property, confidentiality and/or employment right. Any breach of the foregoing representations and warranties entitles OM to immediately terminate this Agreement and/or seek any and all remedies available at law or equity. If you do not agree to any term or condition, you should not access or otherwise use the Services.
5. — USER NAME HANDLING POLICY. Registration for access to and use of the Services may require both a user name and a password or adherence to other particular access requirements as designated by OM in its sole discretion from time to time. You hereby agree to consider your user name and password as confidential information and not to disclose such information to any third party without the prior express written consent of OM, which may be withheld in its sole discretion. You shall immediately notify OM if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. OM will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.
6. MOBILE SERVICES. The Services and, in particular, the App, will offer various tools and/or services that are available to you via your mobile phone or other mobile device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and its related Mobile Services shall be strictly in accordance with this Agreement.
7. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use the Services in accordance with the terms of this Agreement. Accordingly, you hereby agree that OM transfers no ownership or intellectual property interest or title in and to the Services to you or anyone else in connection with your use of the Services. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Services (except for User Content) are exclusively owned, controlled, and/or licensed by OM or its members, parent(s), licensors, or affiliates. OH MAMA, the Oh Mama logo, and all other names, logos, marks, and icons identifying OM, its members, affiliates and/or subsidiaries, and any of their events, programs, products, and/or services, are owned exclusively by OM, and any use of such marks without the prior express written permission of OM is hereby expressly prohibited.
9. LINKS TO OTHER SITES AND THIRD PARTY CONTENT. OM may in its sole discretion provide on the Services links to certain websites or online social networks (or pages) owned and controlled by third parties (collectively, “Third Party Sites”). These Third Party Sites have not necessarily been reviewed by OM and are owned, controlled and/or maintained solely by third parties over whom OM exercises no control. In addition, OM may in its sole discretion provide content on the Services obtained from or through social media networks (or pages) owned and controlled by third parties, including, without limitation, certain photographic images obtained from Instagram (“Third Party Content”). Such Third Party Content has not necessarily been reviewed by OM and is created, edited, published, maintained and transmitted by third parties over whom OM exercises no control. Accordingly, OM hereby expressly disclaims and shall not have any liability or responsibility for (i) any Third Party Content appearing on the Services; or (ii) the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on Third Party Sites accessible through links on the Services. Moreover, the Third Party Sites and Third Party Content do not imply an endorsement with respect to any third party, any content, any website, network, or page, or the products or services provided by any third party.
10. DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. OM MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICES FOR ANY PURPOSE, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. OM ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF THE SERVICES.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL OM BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR — USE OF THE SERVICES AND/OR THIS AGREEMENT WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.
12. SUBMISSIONS. Any submission, review or other feedback (collectively, “Submissions”) by you on or through the Services that is received by OM will be deemed to include a royalty-free, perpetual, irrevocable, transferable, sublicensable and non-exclusive right and license for OM to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on any such Submission without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
13. ENFORCEMENT. You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of OM’s intellectual property or proprietary rights, may cause irreparable injury to OM, whereby such injury would not be quantifiable in monetary damages, and OM would not have an adequate remedy at law. In the event of such injury or potential for such injury, you therefore hereby agree that OM shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
14. ENFORCING SECURITY. Any actual or attempted use of the Services by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. OM reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of the Services (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Services. OM may share any User Information we obtain from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. OM will also disclose User Information as required by any court order and/or subpoena. In addition, OM hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, and/or interrupt operation of or access to the Services, or any portion thereof, in order to protect the Services, OM, or the business interests of OM and/or its members and affiliates.
15. TERM AND TERMINATION. This Agreement will take effect at the time you click “I ACCEPT” or begin using the Services, whichever is earliest. This Agreement will terminate automatically if (i) you fail to comply with its terms and conditions; or (ii) cease all use of the Services. Termination will be effective without notice. In addition, OM may in its sole discretion terminate this Agreement upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use the Services shall immediately cease and you must promptly return to OM (at the address listed below) all tangible embodiments of the Services in your possession or control. Sections 2-5, 7 and 9-20 will survive the termination of this Agreement.
16. WAIVER & SEVERABILITY. OM’s failure to insist on upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent or other default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
17. COPYRIGHT INFRINGEMENT POLICY AND TAKE DOWN PROCEDURES:
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement (NOCI) to the designated agent of Oh Mama, LLC (http://www.copyright.gov/onlinesp/list/y_agents.html), by providing such agent with the following information:
- a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
- identification or description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Our agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:
By mail: Attention: Jamie Burton PO Box 38791 Baltimore, Maryland 21231
By phone: (877) 589-8673
By email: email@example.com
We have adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of ours and/or others
Repeat Infringer Policy:
We will terminate user accounts that have been the subject of three (3) separate DMCA notices. In the event a user’s materials are removed due to a DMCA notice and then subsequently restored due to the filing of a DMCA counter-notification, we will treat the underlying DMCA notice as withdrawn.
We reserve the right to terminate user accounts that are the subject of fewer than three (3) DMCA notices in appropriate circumstances, such as where the user has a history of violating or willfully disregarding the terms of this Agreement.
19. CONTACT INFORMATION. If you have any questions regarding this Agreement and/or the Services, please contact OM at Attention: Jamie Burton PO Box 38791 Baltimore, Maryland 21231 (877) 589-8673 (phone), or firstname.lastname@example.org (email).