Revised October 15, 2009
1. ACCEPTANCE OF TERMS
2. USER AGE REQUIREMENTS
DD retains the right to change the terms of this Agreement at any time in its sole discretion. We will post or display notices of material changes on the DD website. Once posted, such changes become effective immediately, and if you use the DD website after they become effective, you thereby agree to be bound by the changes. You should check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you. DD retains the right to change, modify, withdraw, suspend or even permanently discontinue all or any portions of the DD website at any time, without any liability or obligation to you, with or without notice.
6. USE OF MATERIAL
The DD website, including but not limited to all content, information, media and materials, website code, design, text, images, photographs, illustrations, audio and video material, media files, art, graphics, articles, databases, proprietary information, writings, spoken statements, music, video recordings, audio-visual works and recordings, slides, portraits, animated and/or motion pictures, caricatures, likenesses, vocal or other sounds, sound recordings, voices, voice reproductions, computer graphics and visual effects, as well as any associated documentation, and all copyrightable or otherwise legally protectible elements of the DD website, including, without limitation, the selection, sequence and ‘look and feel’ and arrangement of items, and all derivative works, translations, adaptations or variations of same, regardless of the medium, broadcast medium, format or form, now known or hereinafter developed or discovered, and regardless of where produced, on location, in a studio or elsewhere, characters, real or imaginary, in any part of the world, are the property of DD and/or its Affiliates, and their Advertisers, licensors, suppliers, service providers, promotional partners and/or sponsors (all of the foregoing, individually and/or collectively, is referred to herein as “DD Materials”). The DD Materials are legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties.
DD authorizes you to access the DD Materials and grants you the right to use the DD website solely for your non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purpose whatsoever. You must not alter, delete or conceal any copyright or other notices contained on the DD website, including notices on any DD Materials you download, transmit, display, print or reproduce from the DD website. Unless we explicitly and specifically notify you otherwise in writing, you shall not, nor will you allow any third party to reproduce, modify, create derivative works from, display, perform, publish, distribute, sell, upload, transmit, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website) or otherwise use, any DD Materials without the express prior written consent of DD. Any unauthorized or prohibited use of any DD Materials, including use in contravention of this Agreement, may subject you to civil liability, criminal prosecution, or both.
You may not use any computerized or automatic mechanism, including without limitation, any web spider or robot, to access, extract or download any DD Materials from the DD website. You hereby warrant to DD that you will not use the DD website for any unlawful purpose or purpose prohibited by this Agreement. If you violate any term of this Agreement, your permission to use the DD Materials automatically terminates and you must immediately cease all use thereof and destroy any copies you have made of any of the DD Materials. You are solely responsible for complying with all import and export laws and regulations and all applicable laws of any jurisdiction inside and outside of the United States from which you may access the DD website.
We require users to respect our copyrights, trademarks, and other intellectual property rights and those of others, including other users. On notice, we will act expeditiously to remove content on the DD website that infringes the copyright rights of others and will disable the access to the DD website and its services of anyone who uses them to repeatedly to infringe the intellectual property rights of others. Specific procedures to notify us about copyright infringement can be found on the Notice and Procedure for Making Claims of Copyright Infringement, as described in section 9 below.
The various trademarks, service marks, book titles, event or program names, slogans, logos, and other distinctive identifications (“marks”) on or of the DD website are the intellectual property of and proprietary to DD, its Affiliates, its or their Advertisers, suppliers and others with whom these entities may do business. You have no right to use any of these marks or any confusingly similar marks for any purpose without the express prior written consent of DD.
All materials (whether audio, video, text or otherwise) which you may purchase through the DD Website are subject to the standard Purchase Agreement.
7. FORUMS AND POSTINGS
The DD website contains forum services, web communities, and other message and communication facilities (“Forums”) that may provide you and other users an opportunity to submit, upload, post, display, transmit and/or exchange information, ideas, opinions, information, files, messages, transmissions and DD Materials with other users and/or with us and these are referred to in this Agreement as a “Post” or “Posting.”
DD reserves the right at all times, but does not have the obligation, to edit, refuse to post, or to remove any Posting, in whole or part, that DD deems inappropriate for inclusion in the Forums, for any reason or for no reason. Forums are public and not private and you should assume your Postings may be read by others, with or without your knowledge or permission. Although a particular Forum may have a policy of limited membership or access, DD disclaims all liability if unauthorized persons obtain access to the Forum. You acknowledge that you use the DD Forums is at your own risk and you should not disclose or make available your personal information in any Posting or in any Forum.
You use the Forums solely at your own risk and DD neither endorses nor controls user Postings in the Forums, and DD assumes no duty to monitor or endorse Postings within the Forums, nor does DD represent or guarantee the truthfulness, accuracy or reliability thereof or that any Posting complies with the terms or conditions of this Agreement, and you should not assume that any Posting is true, accurate or reliable.
You understand, acknowledge and agree that Postings originating from any User ID are the sole responsibility of the individual associated with that User ID. This means that you, and not DD, are entirely responsible for the consequences of all your Postings on the Forums or otherwise on the DD website. Postings do not reflect the views of DD or any Affiliates or advertisers. In no event shall DD or any Affiliates or advertisers have or be construed to have any responsibility or liability for or in connection with any Posting whatsoever; provided, however, if we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Agreement, violates any law or is otherwise objectionable, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Forums and the DD website; and/or (d) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on DD and/or the Forums.
If a Posting originates from you or your User ID, you hereby agree that:
(a) you are placing the Posting in the public domain without reservation of any rights or further control over the Posting or its use and you specifically authorize the DD website and Affiliates to use such Posting in whole or in part, throughout the universe, and you are granting DD and its Affiliates a royalty-free, perpetual, irrevocable, unrestricted, unconditional, non-exclusive license to use, reproduce, modify, publish, edit, adapt, create derivative works from, translate, distribute, perform, display and otherwise exploit such Posting and all elements thereof alone or as part of other works in any form, media, or technology, whether now known or hereafter developed or discovered, and to license and sub-license such rights through multiple tiers of sub-licenses, all without any notification or obligation to you, of compensation, attribution or otherwise;
(b) you represent and warrant that (i) the Posting is original to you or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any law, regulation or other governmental requirement or restriction, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be damaging or injurious to DD, any Affiliates or any user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting;
(c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that you have the right to place such Posting in the public domain and grant DD and Affiliates the right to use such Posting as described above; and
(d) we have the right to delete, re-format and/or change your Posting in any manner that we may determine (although you will not be responsible for any such changes made).
The amount of storage space on the DD website per user is limited and some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree we assume no responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or at all or as to any other matter relating to Postings. Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
8. RULES OF CONDUCT
It is a condition of your use of the DD website that you abide by all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your User ID. You shall not use, allow, or enable others to use the DD website, or knowingly condone use of the DD website by others, in any manner that is, attempts to, or might:
affect DD adversely or reflect negatively on us, the DD website, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the DD website, or from advertising, linking or becoming a supplier to us in connection with the DD website;
be defamatory, libelous, indecent, vulgar or obscene, pornographic, sexually explicit, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, discriminatory, or abusive, or which may or may appear to impersonate anyone other than yourself;
send or result in the transmission of spam, junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”;
be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;
transmit, distribute or upload programs or material that contain malicious code, such as viruses, time bombs, cancel-bots, worms, Trojan horses, spyware, or other potentially harmful programs or other material or information;
forge any TCP/IP packet header or part of the header information in any e-mail or newsgroup posting for any reason;
violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order, any treaties or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any other person, firm or enterprise;
gain unauthorized access to the DD website, other users’ accounts, names, User IDs, personally identifiable information or other computers, websites or pages, connected or linked to the DD website or to use the DD website in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
modify, disrupt, alter or interfere with the use, features, functions, operation or maintenance of the DD website or the rights or use and enjoyment of the DD website by any other person, firm or enterprise; or
collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of the DD website, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so.
9. VIOLATIONS OF TERMS AND COPYRIGHT INFRINGEMENT CLAIMS
If you believe that any DD Materials on the DD website (including, without limitation, any Posting) violates any of the terms or conditions of this Agreement, please send us a message about it at dawn@DawnD.com. We cannot guarantee that we will respond to your message, and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
If you believe the DD website contains elements that infringe your copyrights in your work, please follow these instructions:
Notice and Procedure for Making Claims of Copyright Infringement.
Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on the DD website should be sent ONLY to our Designated Agent. The following information is provided solely for notifying DD that your copyrighted material may have been infringed.
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OR E-MAIL ABUSE, etc.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
Written notification must be submitted to the following Designated Agent: Dawn Doherty
Name of Agent Designated to Receive Notification of Claimed Infringement: Website Administrator
Full Address of Designated Agent to Which Notification Should be Sent:
Telephone Number of Designated Agent: (917) 392-5500
E-mail Address of Designated Agent: dawn@DawnD.com
Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
(1) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
(2) Identification of the copyrighted work (or works) that you claim has been infringed;
(3) A description of the material that you claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the website where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);
(4) A clear description of where the infringing material is located on our website, including as applicable its URL, so that we can locate the material;
(5) Your name, address, telephone number, and e-mail address;
(6) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(7) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The DD website may contain various forms of advertisements from our sponsors. As a result of this, you may choose to communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties such as our advertisers, sponsors, or promotional partners (“Advertisers”). All such interaction is strictly and solely between you and the Advertiser involved and DD is not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may obtain from any Advertiser).
11. LINKS TO OTHER SITES
12. TERMINATION OF YOUR REGISTRATION
You may cancel your registration and User ID at any time and for any reason by sending an e-mail to dawn@DawnD.com with your username, password, and e-mail address and requesting termination of your registration. DD may terminate your use of and registration on the DD website, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.
THE DD WEBSITE(S) AND ALL SERVICES, FEATURES, FUNCTIONS, CONTENT, PRODUCTS AND CAPABILITIES ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN ADDITION, DD MAKES AND PROVIDES NO GUARANTY OR ASSURANCE THE DD WEBSITE OR ANY CONTENT WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL SERVICES, PRODUCTS, FEATURES, FUNCTIONS, PRODUCTS, CONTENT OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED OR AT ANY PARTICULAR TIME OR TIMES.
Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the DD website. You acknowledge and agree that you are assuming the entire risk of using the DD website and the services, features and functions of and/or associated with the DD website.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER DD, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, NOR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE DD WEBSITE OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
THE WEBSITE IS MAINTAINED ON SERVERS IN THE UNITED STATES INTENDED FOR USERS AND USE OF THE WEBSITE THAT IS NOT RESTRICTED OR PROHIBITED BY LAW OR REGULATION. DD DISCLAIMS ALL LIABILITY FOR ANY USE NOT SPECIFICALLY AUTHORIZED OR THAT IS IN VIOLATION OF THIS AGREEMENT OR THE LAWS OR REGULATIONS THAT MAY APPLY TO YOU IN ANY JURISDICTION OR COUNTRY.
You agree to indemnify, defend (at our election) and hold harmless DD, its Affiliates and its and their respective officers, directors, employees, agents, licensors, representatives, Advertisers, service providers and suppliers from and against any and all claims, actions, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees), resulting from any breach or violation of this Agreement by you, or resulting from your Postings or any DD Materials you provide, submit or make available on or through the DD website or your unauthorized use of any DD Materials. DD reserves the right to assume, at its expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with DD in the defense of any such claim, action, settlement or compromise negotiations, as requested by DD.
15. APPLICABLE LAW AND OTHER TERMS
If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provisions and this Agreement will be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the DD website, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
You agree that the DD website shall be deemed solely based in California and that the DD website shall be deemed a passive website that does not give rise to personal jurisdiction over DD, either specific or general, in jurisdictions other than California. This Agreement and your use of the DD website shall be governed by, construed and enforced in accordance with the substantive laws of the United States of American and the State of California applicable to contracts made, executed and wholly performed in that State, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State of California and County of Los Angeles and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise; provided, however, that notwithstanding the foregoing, you agree that DD has the right to commence and prosecute an action against you in connection with this Agreement, in your home jurisdiction. Either DD or you may demand that any dispute between the DD website and you about or involving the DD website must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Los Angeles, California, USA, provided that the foregoing shall not prevent DD from seeking injunctive relief in a court of competent jurisdiction. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE DD WEBSITE(s) OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.