July 3, 2011
Mighty Barnacle, LLC. (“MB” or “we”) operates sherrilynkenyon.com, kinleymacgregor.com, dark-hunter.com, etc. which is a social networking platform that allows members to create unique personal profiles online in order to find and communicate with old and new friends.
The services offered by MB include any MB or Sherrilyn Kenyon-branded URL, MB messaging services (including, without limitation, private messaging, and email services), and any other features or content offered from time to time by MB in connection with MB’s business (collectively, the “MB”). The MB Services are hosted in the United States.
MB reserves the right to modify this Agreement at any time and from time to time, and each such modification shall be effective upon posting on the MB Services. All material modifications will apply prospectively only. Your continued use of the MB Services following any such modification constitutes your agreement to be bound by and your acceptance of the Agreement as so modified. It is therefore important that you review this Agreement regularly. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you must discontinue use of the MB Services immediately.
1. Eligibility. Use of the MB Services and registration to be a Member for the MB Services (“Membership”) is void where prohibited. By using the MB Services, 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) you are 13 years of age or older; and (d) your use of the MB Services does not violate any Applicable Law. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 13 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the MB Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member’s Account Settings page. MB may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Furthermore, MB reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages (collectively, “messages”) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the MB Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. In addition, MB reserves the right, in its sole discretion, to reassign or rename your profile URL. MB expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the MB Services if MB determines, in its sole discretion, that you have violated this Agreement or pose a threat to MB, its employees, business partners, Users and/or the public. Even after Membership is terminated, this Agreement will remain in effect, including, without limitation, Sections 4-18.
3. Password. 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, email address or password of another Member at any time or to disclose your password to any third party. You agree to notify MB 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.
4. Use by Members. The MB Services are for the personal use of Members and may only be used for direct commercial purposes if they are specifically endorsed or authorized by MB. MB reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the MB Services, including, without limitation, collecting usernames, user id numbers, 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 MB Services, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized data collection or solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. MB reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the MB Services.
5. Proprietary Rights in Content on MB.
5.1 You represent and warrant that: (i) you own the Content posted by you on, through or in connection with the MB Services, or otherwise have the right to grant the license set forth in this Section 5, and (ii) the posting of your Content on, through or in connection with the MB Services and/or Linked Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any Content posted by you on or through the MB Services and/or Linked Services.
5.2 The MB Services contain Content of MB(“MB Content”). MB Content is protected by copyright, trademark, patent, trade secret and other laws, and MB owns and retains all rights in the MB Content and the MB Services. MB hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the MB Content (excluding any software code) solely for your personal use in connection with viewing the MB Website and using the MB Services.
5.3 The MB Services contain Content of Users and other MB licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any Content appearing on or through the MB Services.
5.4 MB performs technical functions necessary to offer the MB Services, including, but not limited to, the technical processing and transmission of email communications to perform the email service, and transcoding and/or reformatting Content to allow its use throughout the MB Services. In addition, you agree and acknowledge that MB may send messages including, but not limited to, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the MB Services.
5.5 MB reserves the right to limit the storage capacity of Content that you post on, through or in connection with the MB Services.
6. Content Posted. Please choose carefully the information that you post on, through or in connection with the MB Services and that you provide to other Users. Your MB profile may not include any form of Prohibited Content, as outlined in Section 7 below. Despite this prohibition, information, materials, products or services provided by other MB Members (for instance, in their profiles) or Linked Services may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and MB assumes no responsibility or liability for this material. If you become aware of misuse of the MB Services by any person or Linked Service, please click on the “Contact” or the “Report Abuse” links on the Website pages.
6.1 MB may reject, refuse to post or delete any Content for any or no reason, including, but not limited to, Content that in the sole judgment of MB violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. MB assumes no responsibility for monitoring the MB Services for inappropriate content or conduct. If at any time MB chooses, in its sole discretion, to monitor the MB Services, MB nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
6.2 You are solely responsible for the Content that you post on, through or in connection with any of the MB Services, and any material or information that you transmit to other Members and for your interactions with other Users.
7. Content/Activity Prohibited. The following are examples of the kind of Content that is illegal or prohibited to post on, through or in connection with the MB Services. MB reserves the right to investigate and take appropriate legal action against anyone who, in MB’s sole discretion, violates this provision, including, without limitation, removing the offending Content from the MB Services, terminating the Membership of such violators and/or reporting such Content or activities to law enforcement authorities. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of MB:
7.1 is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
7.2 harasses or advocates harassment of another person;
7.3 exploits people in a sexual or violent manner;
7.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
7.5 solicits or is designed to solicit personal information from anyone under 18;
7.6 publicly posts information that poses or creates a privacy or security risk to any person;
7.7 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
7.8 constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music/books or links to pirated music/book files;
7.9 involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
7.10 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
7.11 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;
7.12 solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
7.13 involves commercial activities and/or sales without prior written consent from MB such as contests, sweepstakes, barter, advertising, or pyramid schemes;
7.14 includes a photograph or video of another person that you have posted without that person’s consent;
7.15 for author, band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile; or
7.16 violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited on the MB Website and through your use of the MB Services. MB reserves the right to investigate and take appropriate legal action against anyone who, in MB’s sole discretion, violates this provision, including, without limitation, terminating your Membership and/or reporting such activity or Content to law enforcement authorities. Prohibited activity includes, but is not limited to:
7.17 criminal or tortious activity, including, but not limited to, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, defamation, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
7.18 advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the MB Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, MB reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which MB deems appropriate in its sole discretion. If you breach this Agreement and send or cause to send (directly or indirectly) unsolicited bulk messages, or other unauthorized commercial communications of any kind through the MB Services, you acknowledge that you will have caused substantial harm to MB, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay MB $100 for each actual or intended recipient of such unsolicited message, or other unauthorized commercial communication you send through the MB Services;
7.19 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the MB Services;
7.20 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
7.21 modifying, copying, distributing, downloading, scraping or transmitting in any form or by any means, in whole or in part, any Content from the MB Services other than your Content which you legally post on, through or in connection with the MB Services;
7.22 providing or using “tracking” or monitoring functionality in connection with the MB Services, including, without limitation, to identify other Users’ views, actions or other activities on the MB Services;
7.23 interfering with, disrupting, or creating an undue burden on the MB Services or the networks or services connected to the MB Services;
7.24 impersonating or attempting to impersonate MB or a MB employee, administrator or moderator, another Member, or person or entity (including, without limitation, the use of email addresses associated with or of any of the foregoing);
7.25 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;
7.26 selling or otherwise transferring your profile, your email address or URL;
7.27 using or distributing any information obtained from the MB Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
7.28 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the MB Services on behalf of that person, such as placing commercial content on your profile, links to e-commerce sites not authorized by MB, posting status or mood updates, blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose as one of your top friends, or sending messages with a commercial purpose;
7.29 relaying email from a third party’s mail servers without the permission of that third party;
7.30 using invalid or forged headers to disguise the origin of any Content transmitted to or through MB computer systems, or otherwise misrepresenting yourself or the source of any message or Content;
7.31 using any automated system, including, but not limited to, scripts or bots in order to harvest email addresses or other data from the MB Website for the purposes of sending unsolicited or unauthorized material;
7.32 engaging in, either directly or indirectly, or encouraging others to engage in, click-throughs generated through any manner that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent; or
7.33 using the MB Services in a manner inconsistent with any and all Applicable Law.
8. Protecting Copyrights and Other Intellectual Property. MB respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is MB’s policy to terminate, in appropriate circumstances, the membership of repeat infringers.
If you believe your work has been copied and posted on or through the MB Services in a way that constitutes copyright infringement, please send MB a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the MB Services (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and (f) your physical or electronic signature. MB for notification of claimed infringement can be reached as follows: Mighty Barnacle, LLC through email firstname.lastname@example.org
9. Third Party Linked Services. Linked Services created by third party developers may be available on, through or in connection with the MB Services. Linked Services include applications, websites, desktop, wireless, mobile and other services available from third parties which can be installed onto your MB profile or shared with other Users on the MB Services or which may link to your MB account from outside of the MB Services. Linked Services may use your MB profile information, friends and/or other profile content on the Linked Service and share activity events between MB and the Linked Service (depending on the features the Linked Service chooses to make available).
10. Member Disputes. You are solely responsible for your interactions with other MB Users, third party developers or any other parties with whom you interact through the MB Services and/or Linked Services. MB reserves the right, but has no obligation, to become involved in any way with these disputes.
12. Disclaimers. MB is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted through or in connection with the MB Services or Linked Services, by Users of the MB Services or Linked Services, and such User Content does not necessarily reflect the opinions or policies of MB. In addition, MB is not responsible for any damage, injury or loss caused by Users of the MB Services or by any of the equipment or programming associated with or utilized in the MB Services or Linked Services. Profiles and Linked Services created and posted by Members on, though or in connection with the MB Services may contain links to other websites or services. MB is not responsible for the Content, accuracy or opinions expressed on such websites and services, and such websites and services are not necessarily investigated, monitored or checked for accuracy or completeness by MB. Inclusion of any linked website or service on the MB Services does not imply approval or endorsement of the linked website or service by MB. When you access these third party sites and services, you do so at your own risk. MB takes no responsibility for third party advertisements or Linked Services that are posted on, through or in connection with the MB Services or Linked Services, nor does it take any responsibility for the goods or services provided by these third parties. MB is not responsible for the conduct, whether online or offline, of any User of the MB Services or Linked Services. MB 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. MB 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 due to technical problems or traffic congestion on the Internet or on any of the MB Services or Linked Services or combination thereof, including, without limitation, any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the MB Services or Linked Services. Under no circumstances shall MB be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the MB Services or Linked Services, attendance at a MB event, from any User Content posted on or through the MB Services or Linked Services, or from the conduct of any Users of the MB Services, whether online or offline. The MB Services and Linked Services are provided “AS-IS” and as available and MB expressly disclaims any warranty of fitness for a particular purpose or non-infringement. MB cannot guarantee and does not promise any specific results from use of the MB Services or Linked Services.
13. Limitation on Liability. IN NO EVENT SHALL MB BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE MB SERVICES OR LINKED SERVICES, EVEN IF MB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MB’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MB FOR THE MB SERVICES DURING THE TERM OF MEMBERSHIP.
14. U.S. Export Controls. Software available in connection with the MB Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the MB Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
15. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of Tennessee, without regard to its conflict of law provisions. You and MB agree to submit to the exclusive jurisdiction of the courts located within the State of Tennessee to resolve any dispute arising out of the Agreement or the MB Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
16. Indemnity. You agree to indemnify and hold MB, its subsidiaries, and affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys’ fees, made by any third party due to or arising out of your use of the MB Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or any Content that you post on, through or in connection with the MB Services.
18. Other. This Agreement is accepted upon your use of the MB Website or any of the MB Services and is further affirmed by you becoming a Member. Your agreement with MB will always include this Agreement at a minimum. Your access and use of certain MB Services will require you to accept additional terms and conditions applicable to such certain MB Services. The failure of MB to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. MB is a trademark of Mighty Barnacle, LLC. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Please contact us at: email@example.com with any questions regarding this Agreement.
BY PARTICIPATING ON THIS SITE, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.