ONE LETTERMAN DRIVE WEBSITE TERMS AND CONDITIONS OF USE
September 21, 2012
This is a legal agreement between you and Letterman Digital Arts Ltd. ("LDA", "we", "us" or "our") governing the use of the website and services located at www.onelettermandrive.com (the "One Letterman Drive Website").
NOTE TO USERS UNDER 13: Our service is not for persons under the age of 13. If you are under 13 years old, then please do not use the One Letterman Drive Website.
If you are over 13, but under the age of consent where you live, then you must get the consent of your parents prior to using the One Letterman Drive Website and, if you do use the One Letterman Drive Website, you represent to us that you have done so.
Individual Features and One Letterman Drive Website.
When using the One Letterman Drive Website, you may be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the "Guidelines"). All such Guidelines are hereby incorporated by reference into these Terms. To the extent that any terms of these Terms conflict with any Guidelines, these Terms shall control.
Modification of the Terms.
Because the One Letterman Drive Website changes from time to time, LDA reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time without notice. Please check the Terms periodically for changes. Your continued use of the One Letterman Drive Website after the posting of changes will constitute your acceptance of such changes. While non-material changes to these Terms are effective immediately, any material changes to these Terms will automatically be effective thirty (30) days after they are initially posted on the One Letterman Drive Website.
The One Letterman Drive Website are owned and operated by us and our licensors. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the One Letterman Drive Website that are provided by us ("LDA Materials") are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. LDA Materials do not include any content owned by and submitted by you. Except as expressly authorized by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the One Letterman Drive Website or LDA Materials. You shall not acquire any right, title or interest to the One Letterman Drive Website or LDA Materials, except for the limited rights set forth in these Terms or any express license from us or our licensors.
Subject to the terms and conditions herein, LDA grants you permission to use the One Letterman Drive Website as set forth in these Terms, provided that (i) you use the One Letterman Drive Website solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the One Letterman Drive Website in any medium without LDA’s prior written authorization; (iii) you do not alter or modify any part of the One Letterman Drive Website other than as may be reasonably necessary to use the One Letterman Drive Website for its intended purposes; (iv) you do not engage in any of the prohibited uses described in these Terms; and (v) you will otherwise fully comply with these Terms. The One Letterman Drive Website is controlled and offered by LDA from its facilities in the United States of America. LDA makes no representations that the One Letterman Drive Website is appropriate or available for use in other locations. Those who access or use the One Letterman Drive Website from other jurisdictions do so at their own risk and are responsible for compliance with local law.
You understand that when using the One Letterman Drive Website, you will be exposed to text, images, videos and other content ("Content") from a variety of sources, and that LDA is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against LDA with respect thereto. LDA does not endorse any Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will LDA be liable in any way for or in connection with any Content, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the One Letterman Drive Website.
Removal of Content.
LDA and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content or LDA Materials in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
- As a condition of your use of the One Letterman Drive Website, you will not use the One Letterman Drive Website for any purpose that is unlawful or prohibited by these Terms. Access to the LDA Materials and the One Letterman Drive Website from territories where their access or use thereof is illegal is strictly prohibited. One Letterman Drive Website users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.
- You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the One Letterman Drive Website, use of the One Letterman Drive Website, access to the One Letterman Drive Website, or Content obtained through the One Letterman Drive Website, for any purpose other than as the One Letterman Drive Website is offered by LDA.
- You agree not to defame, harass, abuse, threaten, stalk or defraud users of the One Letterman Drive Website, or collect, or attempt to collect, personal information about users or third parties without their consent.
- You agree not to intentionally interfere with or damage, impair or disable the operation of the One Letterman Drive Website or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
- You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the One Letterman Drive Website, features that prevent or restrict the use or copying of any content accessible through the One Letterman Drive Website, or features that enforce limitations on the use of the One Letterman Drive Website.
- You agree not to attempt to gain unauthorized access to the One Letterman Drive Website, or any part of it, other accounts, computer systems or networks connected to the One Letterman Drive Website, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the One Letterman Drive Website or any activities conducted on the One Letterman Drive Website.
- You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the One Letterman Drive Website. You agree neither to modify the One Letterman Drive Website in any manner or form, nor to use modified versions of the One Letterman Drive Website, including (without limitation) for the purpose of obtaining unauthorized access to the One Letterman Drive Website.
- You agree that you will not use any robot, spider, scraper, or other automated means to access the One Letterman Drive Website for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the One Letterman Drive Website. You agree not to deep-link to the One Letterman Drive Website and will promptly remove any links that LDA finds objectionable in its sole discretion.
- You agree not to utilize framing techniques to enclose any trademark, logo, or other LDA Materials without our express written consent. You agree not to use any meta tags or any other "hidden text" utilizing LDA’s name or trademarks without our express written consent.
- You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the One Letterman Drive Website. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
- You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the One Letterman Drive Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- You agree not to modify, adapt, translate or create unauthorized derivative works based upon the One Letterman Drive Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
You acknowledge, consent and agree that LDA may access, preserve and disclose your account information and information you provide to LDA if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) to respond to your requests for customer service; or (d) protect the rights, property or personal safety of LDA, its users and the public
Links and Third Party Content.
LDA or third parties may provide links on the One Letterman Drive Website to other sites or content ("Third Party Sites"). LDA has no control over such Third Party Sites, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by the One Letterman Drive Website. LDA provides links to you only as a convenience, and the inclusion of any link on the One Letterman Drive Website does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK. When you leave the One Letterman Drive Website, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Sites.
Availability of the One Letterman Drive Website.
LDA may make changes to or discontinue any of the media, web communities, products, or services available within the One Letterman Drive Website at any time, and without notice. The media, products, or services on the One Letterman Drive Website may be out of date, and LDA makes no commitment to update these materials on the One Letterman Drive Website.
Your interactions with other users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other user. Like with any web-based interaction, we suggest that you use caution and good judgment. You are solely responsible for your involvement with other users. If you have a dispute with one or more users, you release LDA (and LDA's officers, directors, agents, affiliates, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If there is a dispute between you and any third party, LDA is under no obligation to become involved. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
LDA. You agree that LDA, in its sole discretion and for any or no reason, may terminate any user or account (or any part thereof) you may have at the One Letterman Drive Website or your use of the One Letterman Drive Website, and discard all or any part of your account or any of information you provide to LDA, at any time, with or without notice, without liability to you. LDA may also in its sole discretion and at any time discontinue providing access to the One Letterman Drive Website, or any part thereof, with or without notice. You agree that any termination of your access to the One Letterman Drive Website or any account you may have or portion thereof may be effected without prior notice, and you agree that LDA shall not be liable to you or any third-party for any such termination. LDA does not permit infringing activities on the One Letterman Drive Website, and reserves the right to terminate access to the One Letterman Drive Website, and remove all content submitted, by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies LDA may have at law or in equity.
User. If you are dissatisfied with the One Letterman Drive Website, please email us at firstname.lastname@example.org. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (i) the One Letterman Drive Website, (ii) any term of these Terms, (iii) any policy or practice of LDA in operating the One Letterman Drive Website, or (iv) any content or information transmitted through the One Letterman Drive Website, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account, discontinuing your use of any and all parts of the One Letterman Drive Website, and providing LDA notice of termination by writing to us at email@example.com or at P.O. Box 29916, San Francisco, California, 94129.
Indemnification; Hold Harmless.
You agree to indemnify and hold harmless LDA, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the One Letterman Drive Website; (ii) your violation of these Terms; (iii) your violation of the rights of any other person or entity; and (iv) your breach or alleged breach of the any representations, warranties, and covenants herein. LDA reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of LDA. LDA will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Disclaimers; No Warranties.
No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LDA, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LDA OR THROUGH THE ONE LETTERMAN DRIVE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THE SECTIONS TITLED "DISCLAIMERS" AND "LIMITATION OF LIABILITY; DAMAGES", THE TERM "LDA" INCLUDES LDA'S PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.
"As is" and "As available" and "With All Faults." YOU EXPRESSLY AGREE THAT THE USE OF THE ONE LETTERMAN DRIVE WEBSITE IS AT YOUR SOLE RISK. THE ONE LETTERMAN DRIVE WEBSITE AND ANY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ONE LETTERMAN DRIVE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
Platform Operation and Content. LDA, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE LDA MATERIALS, CONTENT, THE ONE LETTERMAN DRIVE WEBSITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ONE LETTERMAN DRIVE WEBSITE OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
Accuracy. LDA, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ONE LETTERMAN DRIVE WEBSITE OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Harm to Your Computer or Device. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE ONE LETTERMAN DRIVE WEBSITE (INCLUDING RSS FEEDS) OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
Limitation of Liability; Damages
Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL LDA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE LDA MATERIALS AND OTHER CONTENT ON THE ONE LETTERMAN DRIVE WEBSITE OR ANY THIRD PARTY SITES, THE ONE LETTERMAN DRIVE WEBSITE ITSELF, OR ANY OTHER INTERACTIONS WITH LDA, EVEN IF LDA OR A LDA AUTHORIZED REPRESENTATIVE 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, LDA’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Limitation of Damages. IN NO EVENT SHALL LDA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ONE LETTERMAN DRIVE WEBSITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID LDA IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
Third Party Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN LDA AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE ONE LETTERMAN DRIVE WEBSITE OR RECEIVED BY YOU THROUGH ANY THIRD PARTY SITES.
Limitations by Applicable Law; Basis of the Bargain.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
United States Export Controls.
You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from LDA under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, LDA from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
Notice. LDA may provide you with notices, including those regarding changes to LDA’s terms and conditions, by email, regular mail or postings on the One Letterman Drive Website. Notice will be deemed given twenty-four hours after email is sent, unless LDA is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the One Letterman Drive Website. In such case, notice will be deemed given three days after the date of mailing.
Governing Law. You agree that (i) the One Letterman Drive Website and any services provided by the One Letterman Drive Website shall be deemed solely based in California; and (ii) the One Letterman Drive Website shall be deemed a passive website that does not give rise to personal jurisdiction over LDA, either specific or general, in jurisdictions other than California. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the One Letterman Drive Website shall be filed only in the state or federal courts in and for San Francisco County, California and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of LDA to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
Severability. If any provision of these Terms shall be 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.
Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by LDA without restriction. Any assignment attempted to be made in violation of this Terms or Use shall be void.
Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and LDA as a result of these Terms or your use of the One Letterman Drive Website. You further acknowledge that by submitting information to LDA, no confidential, fiduciary, contractually implied or other relationship is created between you and LDA other than pursuant to these Terms.
Survival. The Sections entitled "Ownership; Proprietary Rights", "Disclaimers; No Warranties", "Indemnification; Hold Harmless", "Limitation of Liability and Damages", and "Miscellaneous" will survive any termination of these Terms.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
Entire Agreement. This is the entire agreement between you and LDA relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in a writing signed by both parties or by a change to these Terms or Guidelines made by LDA as set forth in these Terms.
Claims. YOU AND LDA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ONE LETTERMAN DRIVE WEBSITE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The One Letterman Drive Website is offered by Letterman Digital Arts Ltd., located at P.O. Box 29916, San Francisco, California, 94129, email: firstname.lastname@example.org. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.