Eligibility, Registration and Account
The Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are under the age of 18, or age of legal majority under applicable law, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the Services, you represent and warrant that you (a) are 13 years of age or older; (b) are a resident of the United States; (c) have not been previously suspended or removed from the Services; (d) do not have more than one online account with A-List+; and (e) have full power and authority to enter into this agreement and that, in doing so, you will not violate any other agreement to which you are a party.
In order to access and use certain areas or features of the Services, you may be required to register for an online account or to use your credentials (e.g., username and password) from a third-party social media site to log into the Services. When registering for an account, you cannot create an account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim account names, or to take other reasonable action as necessary, on behalf of any business or individual that holds legal claim, including trademark rights, in a name. In consideration of your use of the Services, you agree to (w) provide accurate, current and complete account information; (x) maintain and promptly update your account information; (y) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to A-List+; and (z) promptly notify A-List+ if you discover or otherwise suspect any security breaches related to the Services. 3.
Copyright and Limited License
Unless otherwise indicated on the Services or otherwise by A-List+, the Services and all content and other materials therein, including, without limitation, the A-List+ logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Content") are the proprietary property of A-List+ or our licensors or users and are protected by U.S. and international copyright laws. You are hereby granted a limited, nonexclusive, non-sublicensable license to access and use the Services and Content; however, such license is subject to these Terms and does not include (a) any resale or commercial use of the Services or the Content therein; (b) the collection and use of any product or service listings, pictures or descriptions; (c) the distribution, public performance or public display of any Content; (d) modifying or otherwise making any derivative uses of the Services or the Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Services, the Content or any information contained therein, except as expressly permitted on the Services; and (g) any use of the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of A-List+, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by A-List+, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
- 2 - LEGAL27717612.5
Notwithstanding anything to the contrary in these Terms, the Services and Content may contain software components that are subject to separate license terms, in which case those license terms will apply to the access and use of such software components. 4.
Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, A-List+ has adopted a policy of terminating, in appropriate circumstances and in AList+'s sole discretion, account holders or other users of the Services who are deemed to be repeat infringers. A-List+ may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that anything on the Services infringes any copyright which you own or control, you may file a notification of such infringement with our designated agent as set forth below: Name of Designated Agent: Rick Winkler Address: 2251 North Rampart Blvd., Suite 1497, Las Vegas, NV 89128 Phone: 408-657-0963 Fax: 301-384-3287 Email: [email protected]
+.com Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing. 5.
"A-List+," "Shmying" and the A-List+ logo and any other A-List+ product or service names, logos or slogans that may appear on the Services are trademarks of A-List+ in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of A-List+ or the applicable trademark holder. You may not use any metatags or other "hidden text" utilizing "A-List+" or any other name, trademark or product or service name of A-List+ without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of A-List+ and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. - 3 - LEGAL27717612.5
Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by A-List+. 6.
You are granted a limited, nonexclusive right to create a text hyperlink to the Services for noncommercial purposes, provided that such link does not portray A-List+ or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a A-List+ logo or other proprietary graphic of AList+ to link to the Services without the express written permission of A-List+. Further, you may not use, frame or utilize framing techniques to enclose any A-List+ trademark, logo or other proprietary information, including the images found at the Services, the content of any text or the layout/design of any page or form contained on a page on the Services without A-List+'s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of A-List+ or any third party. A-List+ makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Services, or websites linking to the Services. Such sites are not under the control of AList+, and A-List+ is not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. A-List+ provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by A-List+ of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services. 7.
Third Party Content
A-List+ may provide third party content on the Services and may provide links to web pages and content of third parties (collectively, "Third-Party Content") as a service to those interested in this information. A-List+ does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that A-List+ is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.
- 4 - LEGAL27717612.5
Advertisements and Promotions; Third-Party Products, Services and Promotions
A-List+ may display advertisements and promotions from third parties on the Services or may otherwise provide information about or links to third-party products or services on the Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. A-List+ is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of third-party information on the Services. 9.
The Services include interactive features and areas that allow users to create, post, transmit or store content, including but not limited to product-, brand-, recipe-, retailerand other shopping-related testimonials and recommendations (otherwise known as "Shmys") and other text, music, sound, photos, videos, graphics, code, items or materials (collectively, "User Content"). You understand that your User Content is viewable by others and that you have the ability to control who can access such content by adjusting your privacy settings. You agree that you are solely responsible for your User Content and for your use of such interactive areas, and that you use them at your own risk. By using the interactive areas of the Services, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following: §
User Content that is untruthful, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- 5 - LEGAL27717612.5
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
User Content that references or depicts brands, products or services to which you have a material connection (such as if you are an employee, paid blogger or recipient of free products or services) but that does not contain a clear disclosure of your material connection to such brands, products or services. At A-List+'s request, you agree to provide any supporting information or documentation related to your User Content;
Unsolicited promotions, political campaigning, advertising or solicitations;
Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
Viruses, corrupted data or other harmful, disruptive or destructive files; or
User Content that, in the sole judgment of A-List+, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose A-List+ or our users to any harm or liability of any type.
You further agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Services. You agree that you will abide by these Terms and will not: §
Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner;
Send any unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters or pyramid schemes, or harvest or collect the email addresses or other contact information of other users from the Services for the purpose of sending spam or other commercial messages;
Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Services or to extract data;
Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Services (except as otherwise expressly permitted by law);
- 6 - LEGAL27717612.5
Use or attempt to use another user's account without authorization from such user and A-List+;
Attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Services that you are not authorized to access;
Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose;
Engage in any harassing, intimidating, predatory or stalking conduct;
Develop any third-party applications that interact with User Content and the Services without our prior written consent; and
Use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any activity that violates these Terms.
A-List+ is not responsible or liable for the conduct of, or your interactions with, any users of the Services (whether online or offline), nor is A-List+ responsible or liable for any associated loss, damage, injury or harm. Enforcement of these Terms is solely in A-List+'s discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of A-List+'s right to enforce these Terms in other instances. At the same time, A-List+ encourages you to report User Content that violates these Terms by emailing us at [email protected]
+.com. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Services will not contain any content that is prohibited by these Terms. As a provider of interactive services, A-List+ is not liable for any statements, representations or User Content provided by our users through the interactive area of the Services. Although AList+ has no obligation to screen, edit or monitor any User Content, A-List+ reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense. Any use of the Services in violation of these Terms may result in, among other things, termination or suspension of your rights to use the Services. 10.
Rights in User Content
You retain all ownership rights in the User Content you submit to A-List+. By submitting or posting User Content on the Services, you grant A-List+ a nonexclusive, royalty-free, transferable, worldwide and fully sublicensable right to use, store, reproduce, modify, - 7 - LEGAL27717612.5
adapt, publish, translate, create derivative works from, distribute, perform and display such User Content for the purposes of operating, developing, providing and using the Services. By posting User Content to the Services, you represent and warrant that (a) such User Content is non-confidential; (b) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Services; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule or regulation. 11.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about A-List+ and the Services ("Feedback"). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of A-List+. A-List+ shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 12.
You agree to defend, indemnify and hold harmless A-List+ and our partners, independent contractors, service providers and consultants and our respective directors, officers, employees and agents (collectively, the "A-List+ Parties") from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of the Services; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services; (c) any Feedback you provide; (d) your violation of these Terms; or (e) your violation of the rights of another. 13.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY A-LIST+, THE SERVICES AND THE CONTENT CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. A-LIST+ DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND CONTENT CONTAINED THEREIN. ALIST+ DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. - 8 - LEGAL27717612.5
A-LIST+ IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE A-LIST+ ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, A-LIST+ CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. A-List+ reserves the right to change any and all content contained in the Services and to modify, suspend or discontinue the Services or any features or functionality of the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by A-List+. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumer, so some or all of the disclaimers in this section may not apply to you. 14.
Limitation of Liability
IN NO EVENT SHALL A-LIST+ OR THE A-LIST+ PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM A-LIST+, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO A-LIST+'S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A-LIST+, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO A-LIST+ FOR ACCESS TO OR USE OF THE SERVICES. 15.
Modifications to the Services
A-List+ reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice. You agree that A-List+ will not be liable for any modification, suspension or discontinuance of the Services or any part thereof. - 9 - LEGAL27717612.5
Applicable Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH A-LIST+ AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM A-LIST+. You and A-List+ agree to arbitrate any dispute arising from these Terms or your use of the Services, except that you and A-List+ are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and A-List+ agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to A-List+ shall be sent to A-List+, Inc., Attn: Lawrence Bergenfield, CEO, 2251 North Rampart Blvd., Suite 1497, Las Vegas, NV 89128. You and A-List+ further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in Las Vegas, Nevada; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts in Clark County, Nevada have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and the laws of the State of Nevada and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND A-LIST+ WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING. 17.
Notwithstanding any of these Terms, A-List+ reserves the right, without notice and in our sole discretion, to terminate your right to use the Services, or any portion of thereof, and to block or prevent your future access to and use of the Services or any portion thereof. 18.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- 10 - LEGAL27717612.5