TERMS OF SERVICE
Table of Contents
License to the Site
Changes to Site and/or Terms of Service
Trademarks, Copyrights and Restrictions
Consent to Electronic Communications
Forums and Public Communications
Registration and Acceptance of Community Guidelines
Non-United States Residents
Limitation of Liability
The Site is intended solely for users thirteen (13) years of age and older. You represent and warrant either that you are eighteen (18) years of age or older, or if you are under the age of eighteen (18) that you are at least thirteen (13) and are accessing the Site with the knowledge and consent of your parent or legal guardian, who will also be deemed to have agreed to this Agreement. You must be at least eighteen (18) years old to order products or register in any way through the Site. Certain parts of the Site may be subject in whole or in part to heightened age and/or other eligibility requirements.
Certain parts or features of the Site may require registration or may otherwise ask you to provide information to participate in certain features or to access certain content. The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain parts or features of the Site. You agree that you will not provide any false personal information to the Site, or create an account for anyone other than yourself without permission. You will also not create more than one personal profile, and if you select a username for your account, we reserve the right to remove or reclaim it if we believe appropriate (such as if a trademark owner complains about a username). If you register with the Site, you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of the Site. You accept responsibility for all activities that occur under your account, email or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights. Company may, in its sole discretion, and at any time, with or without notice, terminate your password and membership, for any reason or no reason at all. If we disable your account, you agree that you will not create another one without our permission.
License to the Site
Company grants you a non-exclusive, non-transferable, limited right and license to access, use and privately display the Site and the materials thereon for your personal use only, provided that you comply fully with this TOS. You shall not interfere (or permit the use of your membership by a third party to interfere) or attempt to interfere with the operation or use of Site by other members in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly prohibited by any provision of this TOS.
Changes to Site and/or Terms of Service
Company reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Site or this TOS, in whole or in part, at any time without further notice. For changes to these TOS that we deem material, we will place a notice on the Company website located at www.tragickiss.com by revising the link on the homepage to read substantially as “Updated Terms of Service” for up to three (3) weeks or some other amount of time that we determine in our discretion. If you access or use the Site in any way after the TOS have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these TOS will be available on the site and will supersede all previous versions of these TOS.
Some areas of the Site may have additional terms and conditions ("Additional Terms"). Where Additional Terms apply, we will make them available for you to read through. By using those areas of the Site, you agree to the Additional Terms.
Trademarks, Copyrights & Restrictions
The Site and all of the content it contains, or may in the future contain, including but not limited to text, video, pictures, graphics, designs, information, applications, software, music, audio files, articles, directories, guides, photographs as well as the trademarks, service marks, trade names, trade dress, copyrights, logos, domain names, code, patents and/or any other form of intellectual property (collectively, the “Material”) that relates to the Site (other than and except for “User Content” as defined herein) are owned by or licensed by Company or other third parties and are protected from any unauthorized use, copying and dissemination by copyright, trademark and other intellectual property and non-intellectual property laws and by international treaties. Except as expressly permitted in writing by Company, you shall not capture, reproduce, perform, transfer, sell, license, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute or exploit, in whole or in part, any of the Material. Nothing contained in this Agreement or on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Material in any manner without the prior written consent of Company or such third party that may own the Material or intellectual property displayed on the Site. UNAUTHORIZED USE, COPYING, REPRODUCTION, MODIFICATION, PUBLICATION, REPUBLICATION, UPLOADING, FRAMING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING OR ANY OTHER MISUSE OF ANY OF THE MATERIAL IS STRICTLY PROHIBITED. Any use of the Material other than as permitted by this Agreement will violate this Agreement and may infringe upon our rights or the rights of the third party that owns the affected Material. You agree to report any violation of this Agreement by others that you become aware of. You are advised that Company will aggressively enforce its rights to the fullest extent of the law. Company may add, change, discontinue, remove or suspend any of the Material at any time, without notice and without liability.
Consent to Electronic Communications
By registering with the Site, you understand that we may send you communications or data from Company regarding the Site via electronic mail, SMS, MMS, instant messaging, electronic chat, or other electronic delivery, in compliance with the most current version of the Telephone Consumer Protection Act, including but not limited to (i) tasks, notices, videos, record keeping, and audio files; (ii) promotional information regarding the Site, (iii) updates; and (iv) notices about your use of the Site. By registering with Site you consent to such communications and understand that standard text and data charges may apply.
Company is pleased to hear from its customers and welcomes your comments regarding Company products, including Company’s online services. Unfortunately, however, Company’s long-standing company policy does not allow it to accept or consider creative ideas, suggestions, or materials other than those it has specifically requested (see below). While we value your feedback on our services and products, we request that you be specific in your comments on those services and products, and that you not submit any creative ideas, suggestions or materials, including but not limited to stories or character ideas, screenplays, or original artwork. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by Company’s or its affiliates' professional staff might seem to others to be similar to their own creative work. Accordingly, we ask that you do not send us any original creative materials such as show designs, photographs, drawings, or original artwork that you expect to be compensated for or that you would like to keep private.
If you send or post certain specific submissions at our request (e.g., via message boards or in connection with contests, through social media or otherwise) or if you send us creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (each, a “Submission” and collectively, the “Submissions”) despite our request that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. For purposes of this Paragraph, all User Content shall be deemed included in the definition of Submissions. None of the Submissions shall be subject to any obligation of confidence on the part of Company, and Company shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by Company without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. Company shall have and is hereby irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, exploit, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit. By submitting a Submission to the Site or Company, you represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. Submissions to the Site and/or Company will not be acknowledged or returned. You agree and understand that Company is not obligated to use any Submission you make to the Site or Company and you have no right to compel such use. You hereby acknowledge and agree that your relationship with Company is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to Company does not place Company in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that Company has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by Company’s own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in structure, purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of Company’s use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of Company’s actual or alleged exploitation or use of any material you submit to the Site and/or Company, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the exploitation or other use of any Company platform, product or service based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
The Site may contain links to third party websites or resources, which may or may not be obvious (“Third Party Sites”) as well as software, text, graphics, articles, photographs, pictures, designs, sound, video, music, information, software applications and other content originating from third parties (collectively, “Third Party Applications, Software or Content”). Our provision of links to Third Party Sites is not an endorsement of any information, product or service that is offered on or reached through such Third Party Site or Third Party Application, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern.
YOU AGREE THAT YOUR USE OF THIRD-PARTY SITES OR THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
Forums and Public Communications
Company does not endorse the User Content in the Forums and specifically disclaims any responsibility or liability to any person or entity (including, without limitation, persons who may use or rely on such material) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character based upon or resulting from any User Content provided through a Forum.
Company does not and cannot review every message posted by users in the Forums, and is not responsible for the content of these messages or the views or opinions expressed by the users of the Forums. Information disclosed in the Forums is revealed to the public by design. Company reserves the right, but not the obligation, to delete, move or edit User Content, in whole or in part for any reason in Company’s sole discretion. In addition, Company may delete, move, edit or disclose User Content when it is required to do so by law or in a good faith belief that such action is necessary to protect and defend the rights and property of Company or to protect the safety of our users or the public. In no event does Company assume any obligation to monitor the Forums or remove any specific material.
You understand that the uploading to and/or posting of any User Content in any Forum shall not be subject to any obligation of confidence on the part of Company, and Company shall not be liable for any use or disclosure of any User Content. In consideration for your use of the Forums and functionality, you agree to comply with the “Community Guidelines” set forth below. Without limiting Company’s other rights and remedies, individuals who violate the following Community Guidelines may, at Company’s sole discretion, be banned from using the Forums and/or the Site entirely.
Registration and Acceptance of Community Guidelines
In consideration for your use of the Forums, you agree to (i) comply with this TOS and the Community Guidelines, (ii) provide Company with (A) accurate, complete and true information about yourself as required on the Forums registration form (your “Registration Information”) in order to create your Company Forum Account (your “Account”) and (iii) maintain and update, as applicable, your Registration Information with current and complete information. Users who violate this TOS, the Community Guidelines, or provide inaccurate, false, or non-current Registration Information may, at Company’s sole discretion, have their Account suspended or terminated, and may be permanently banned from using any Forum or the Site.
ENTERING ANY FORUM WILL CONSTITUTE ACCEPTANCE OF THESE TERMS OF SERVICE AND YOUR COMPLIANCE WITH THE FOLLOWING GUIDELINES (THE “COMMUNITY GUIDELINES”) FOR USE OF THE FORUMS. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS OF SERVICE OR THE COMMUNITY GUIDELINES, PLEASE DO NOT ENTER ANY FORUM.
You are entirely responsible and liable for all activities conducted by you and any authorized user of your Account in the Forums, including the transmission, posting, or other provision of User Content. Listed below are some, though not all, violations that may result in Company terminating or suspending your access to a Forum. You agree not to do any of the following actions while using any Forum:
Harass, threaten, embarrass or cause distress or discomfort upon another Forum participant, user, or other individual or entity;
- Transmit any User Content in any Forum that Company considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable;
- Cause any chat room screen in any chat room to “scroll” faster than other users are able to type to it or any action of a similar disruptive effect;
- Misrepresent yourself, your age or your affiliation with any person or entity, impersonate in any Forum any person or entity, including but not limited to, a Company official, chat or message board leader, guide or host, or make false or misleading statements;
- Disrupt the normal flow of dialogue in a Company chat room or otherwise act in a manner that negatively affects other participants;
- Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation in the Forums;
- Intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing any Forum;
- Invade the privacy or violate any personal or proprietary right of any person or entity;
- Infringe the intellectual property rights or similar rights, including but not limited to copyrights and trademarks, of any person or entity
- Use the Site in any manner that could damage, impair, disable, overburden or harm the Site or circumvent the intended functionality of the Site;
- Collect information identifying users of the Site by electronic or other means without authorization from the person(s) affected;
- upload, post, transmit, send, share, store, distribute or otherwise make available on the Site any private or sensitive information or content about any third party, including, addresses, phone numbers, e-mail addresses, Social Security numbers and credit card numbers; and
- upload, post, transmit, send, share, store, distribute, or otherwise make available any viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or other electronic or telecommunications equipment.
By posting or uploading Content to the Site, any Forum or submitting any other User Content to Company, you automatically grant (or warrant that the owner of such rights has expressly granted) Company a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to reproduce, modify, adapt, publish, publicly perform, translate, sub-license, create derivative works from, exploit, distribute and otherwise use such materials or incorporate such User Content in or in connection with the Site or by or in any other media or technology now known or later developed throughout the universe in perpetuity. In addition, you represent and warrant that any and all User Content you upload, post, transmit, send, share, store, distribute, or otherwise make available on the Site complies with each of the foregoing Community Guidelines.
You may choose to submit a product review through the Site. All content that you submit may be used at Company’s sole discretion. Company reserves the right to change, condense or delete any content on the Site that Company deems, in its sole discretion, to violate these TOS or any other provision of these TOS. Company does not guarantee that you will have any recourse through Company to edit or delete any content you have submitted. Product reviews are generally posted within two to four business days. However, Company reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not Company, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of Company, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
You agree that you will not post any content for which you were compensated or granted any consideration by any third party or that includes any information that references other websites, addresses, email addresses, contact information, or phone numbers.
By submitting your email address in connection with your product review, you agree that Company and its third party service providers may use your email address to contact you about the status of your review and other administrative purposes.
Product and Price Information
In the event a product is listed at an incorrect price due to typographical error, we shall have the right to refuse or cancel any orders placed for the product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, we will promptly issue a credit to your credit card account in the amount of the incorrect price.
The prices displayed on this Site are quoted in U.S. Dollars and are valid and effective only in the United States. While we do our best to assure that the taxes quoted for a particular order are accurate for the applicable location to which the order is being shipped, should an erroneous quote be provided, we will notify you of such error before finalizing and shipping your order. You will be responsible for all applicable taxes, regardless of the amount quoted on this Website at the time of your order.
You are solely responsible for your interactions with other Site users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
From time to time, the Site may offer sweepstakes, contests or other promotions that require you to send material or information about yourself. Please note that sweepstakes, contests or promotions offered via the Site may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and supplemental disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to comply with abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.
You understand and agree that you may not reproduce, copy, resell, manipulate, or exploit any part of the Site for any commercial purpose.
Non-United States Residents
Company operates the Site in the United States. Company makes no representation that the Materials, including merchandise offered for sale on the Site and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the United States. If you access the Site from locations outside of the U.S. you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable. With respect to shipments of merchandise to consumers, wherever they may reside, title to the merchandise and risk of loss shall pass to the buyer upon delivery of the merchandise to the common carrier.
The Site is controlled and operated by Company from its offices within the State of New York, United States. Company makes no representation that materials in the Site are appropriate or available for use in other locations. Software from this Site is further subject to United States export controls. No software from this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any countries that are subject to U.S. export restrictions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
You understand and agree that Company may, in its sole discretion and at any time, terminate your password, Account or use of any Forum, and discard and remove any User Content posted or submitted by you to any Forum, and/or prohibit you from accessing the Site, in whole or in part, for any reason or no reason at all, at any time in its sole discretion, with or without notice. You understand and agree that Company may take any one or more of these actions without prior notice to you. Should Company take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your Account, including your Registration Information and submitted User Content. You understand and agree that Company shall not have any liability to you or any other person for any termination of your access to any Forum and/or the removal of information concerning your Account. Company will determine your compliance with this Agreement in its sole discretion and its decision shall be final and binding and not subject to challenge or appeal. Any violation of this Agreement may result in restrictions on your access to all or part of the Site and may be referred to law enforcement authorities. No changes to or waiver of any part of this Agreement shall be of any force or effect unless formally posted or made in writing and signed by a duly authorized officer of Company. Upon termination of your membership or access to the Site, or upon demand by Company, you must destroy all materials obtained from the Site and all related documentation and all copies and installations thereof. You are advised that Company will aggressively enforce its rights to the fullest extent of the law.
The Site may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons. Company assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications. Company is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or in connection with the Site, including injury or damage to a user’s or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site. Under no circumstances will Company be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control.
THE SITE, THE MATERIALS, AND THE SOFTWARE, IF APPLICABLE, ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITE, THE MATERIALS, THE FORUMS OR THE SOFTWARE, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE, MATERIALS SOFTWARE OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE MATERIALS, THE FORUMS OR THE SOFTWARE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT COMPANY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
Limitation of Liability
YOU AGREE THAT COMPANY AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE “RELEASED PARTIES”) ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE SITE, THE MATERIAL, THE FORUMS, ANY LISTING OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE (COLLECTIVELY, THE “RELEASED MATTERS”). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $1000. BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You hereby waive any and all rights you have or may have under California Civil Code Section 1542, and/or any similar provision of law or successor statute to it, with respect to the Released Matters. In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement. In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.
Company makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Site and/or the Material. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Company. Views and opinions of users of the Site do not necessarily state or reflect those of Company. Users are responsible for seeking the advice of professionals, as appropriate, regarding the information, opinions, advice or content available as part of the Site.
The Internet may be subject to breaches of security. Company is not responsible for any resulting damage to any user's computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that email submissions over the Internet may not be secure, and you should consider this before submitting any information to anyone over the internet. Company makes no representation or warranty whatsoever regarding the suitability, functionality, availability or operation of the Site.
If you link to the Site, we require that you follow these guidelines. You may link only to the home page, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of Company. The link to this Site must not damage, dilute or tarnish the goodwill associated with any Company names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Company. You may not “frame” the Site or alter its intellectual property or Material in any other way. You may not link to the Site from a site that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise deemed inappropriate, as determined by Company in its sole discretion. Company reserves the right, in its sole discretion, to terminate a link with any website for any reason or no reason at all, including without limitation any website that Company deems to be inappropriate or inconsistent with or antithetical to the Site and/or these Terms.
Company is not responsible for the content or performance of any portion of the Internet including other websites to which this Site may be linked or from which this Site may be accessed.
If you believe that any User Content appearing on the Site or in any Forum has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
- Your name, address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- The exact URL or a description of where the alleged infringing material is located;
- 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;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- 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.
Tragic Kiss, LLC
PO Box 200266
Austin, Texas 78720
By this filing, Company seeks to preserve any and all exemptions from liability that may be available under the copyright law, but does not necessarily stipulate that it is a service provider as defined in 17 U.S.C Section 512(c) or elsewhere in the law.
BY USING THE SITE YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATING TO: YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION OF THESE TERMS OF SERVICE OR ANY LAW; YOUR USE OF THIS SITE AND/OR THE MATERIAL IN VIOLATION OF THESE TERMS OF SERVICE; INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR DEFAMES ANY PERSON; ANY MISREPRESENTATION MADE BY YOU; AND/OR COMPANY’S USE OF YOUR INFORMATION. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN COMPANY’S DEFENSE OF ANY CLAIM. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF COMPANY.
This TOS shall be governed and construed in accordance with the laws of the State of New York applicable to contracts entered into and fully performed in New York (without regard to its conflicts of law principles that would cause the application of any other jurisdiction's laws) With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in New York, New York, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of New York, New York.
By using the Site in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against the officers, directors and employees of Company and its parent, subsidiaries, affiliates (all such individuals and entities collectively referred to herein as the “Company Entities”) arising out of, relating to, or connected in any way with the website or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in New York, New York; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website; (5) the arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Company Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive damages against you or any Company Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Company Entity exceed $125 USD, and your are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Company agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Company shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
This TOS constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof. This TOS may not be amended, nor any obligation waived, without Company’s written authorization. Any failure to enforce any provision of this TOS shall not constitute a waiver thereof or of any other provision thereof.
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.
For any questions, suggestions, or concerns related to these Terms of Service, please send us a message using the “Contact Us” page.
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