1. USER ACCEPTANCE
The words “use” or “using” in this Agreement, means any time an individual (a “User”), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with, use, display, view, print or copy from THE COOL MOM WEBSITE, transmit, receive or exchange data or communicate with THE COOL MOM WEBSITE, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of THE COOL MOM WEBSITE. This Agreement does not cover your rights or responsibilities with respect to third party content or any web sites or links that may direct your browser or your connection to third party web sites or web pages.
There are portions of our THE COOL MOM WEBSITE that we make available to Users in the general public without registering and you may visit and browse those portions without charge or obligation; provided, however, we reserve the right to make changes, limit or restrict those portions at any time and from time to time in our discretion, without notice to you.
We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices of material changes on THE COOL MOM WEBSITE and we may also e-mail you about these changes. Once we post them on THE COOL MOM WEBSITE, these changes become effective immediately and if you use THE COOL MOM WEBSITE after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. COOL MOM also reserves the right to change, modify, withdraw, suspend or even permanently discontinue all or any portions of THE COOL MOM WEBSITE at any time, without any liability or obligation to you, with or without notice.
5. THE COOL MOM WEBSITE AND HYPERLINKS TO THE WEBSITES OF THIRD PARTIES
6. WEBSITE ACCESS
B. In order to access some features of THE COOL MOM WEBSITE, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify COOL MOM immediately of any breach of security or unauthorized use of your account. Although COOL MOM will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of COOL MOM or others due to such unauthorized use.
C. You agree to abide by the “RULES OF CONDUCT” referenced in Section 10 below and not use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses THE COOL MOM WEBSITE in a manner that sends more request messages to COOL MOM servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, COOL MOM grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. COOL MOM reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from THE COOL MOM WEBSITE, nor to use the communication systems provided by THE COOL MOM WEBSITE for any commercial solicitation purposes.
7. INTELLECTUAL PROPERTY RIGHTS
The content on THE COOL MOM WEBSITE, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to COOL MOM, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on THE COOL MOM WEBSITE is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. COOL MOM reserves all rights not expressly granted in and to THE COOL MOM WEBSITE and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of THE COOL MOM WEBSITE or features that prevent or restrict use or copying of any Content or enforce limitations on use of THE COOL MOM WEBSITE or the Content therein.
8. USER SUBMISSIONS
A. THE COOL MOM WEBSITE permits the submission of audio content, video content, text content and commentary or other communications, including blog posts and textual and/or video blogging submitted by you and other Users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, COOL MOM does not guarantee any confidentiality with respect to any submissions.
C. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant COOL MOM all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage COOL MOM or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive (in each case, “Offensive Material”), or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate (in each case, “Offensive Conduct”); (iv) post advertisements or solicitations of business; or (v) impersonate another person.
You understand that when using THE COOL MOM WEBSITE, you will be exposed to User Submissions from a variety of sources, and that COOL MOM is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. Further, COOL MOM does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and COOL MOM expressly disclaims any and all liability in connection with User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that contain Offensive Material and/or Offensive Conduct. In this regard, any User who uses THE COOL MOM WEBSITE, hereby releases and forever discharges COOL MOM and its officers, directors, shareholders, members, owners, operators, licensors, licensees, parents, affiliates, associates, subsidiaries, predecessors, successors, assigns, agents, employees, insurers, partners, trustees, beneficiaries, representatives, attorneys, and all persons acting by and through, under or in concert with it, including parent companies, divisions, subsidiaries and affiliates (collectively, the “Released Parties”), of and from any and all manner of action or actions, cause or causes of action, in law or in equity, judgments, suits, debts, liens, contracts, agreements, guaranties, promises, liabilities, claims, demands, damages, losses, costs or expenses (including without limitation attorneys’ fees and disbursements), whether known or unknown, suspected or unsuspected, arising out of or related to such User’s use of THE COOL MOM WEBSITE, a User Submission, a Posting, alleged violations of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any obligation for compensation, any Offensive Material, any Offensive Conduct or other objectionable statements, intentional or negligent infliction of emotional distress, retaliation, or any other tort, or any federal, state or other governmental statute, regulation, rule, ordinance or other legal or equitable rights or remedies you have or may have against COOL MOM with respect thereto (individually and collectively, a “Claim”), and agree to indemnify and hold COOL MOM and the Released Parties harmless to the fullest extent allowed by law regarding all Claims.
D. In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the information listed below in writing (see 17 U.S.C 512(c)(3) for further detail). Note further, pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on THE COOL MOM WEBSITE should be sent ONLY to our Designated Agent.
NOTE: The following information is provided solely for notifying the service providers referenced below 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 COOL MOM, 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:
Service Provider(s): COOL MOM
Name of Agent Designated to Receive Notification of Claimed Infringement: Chris Kimbell
Full Address of Designated Agent to Which Notification Should Be Sent:
525 Broadway, Ste. 240, Santa Monica, California 90401
Telephone Number of Designated Agent: (310) 587-3535
Facsimile Number of Designated Agent: (310) 587-3533
E-mail Address of Designated Agent: firstname.lastname@example.org
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.
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to COOL MOM customer service through http://www.smosh.com/contact. You acknowledge that if you fail to comply with all of the requirements of this Section 8(D), your DMCA notice may not be valid.
E. COOL MOM permits you to link to materials on THE COOL MOM WEBSITE for personal, non-commercial purposes only. COOL MOM reserves the right to discontinue any aspect of THE COOL MOM WEBSITE at any time.
9. WEB COMMUNITIES, FORUMS AND POSTINGS
THE COOL MOM WEBSITE may now, or in the future, contain forum services, web communities, and other message and communication facilities (“Communities”) 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 Content with other Users and/or with us and these are referred to in this Agreement as a “Post” or “Posting.”
COOL MOM 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 COOL MOM deems inappropriate for inclusion in the Communities, for any reason or for no reason. Communities 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 Community may have a policy of limited membership or access, COOL MOM shall have no liability if unauthorized persons nevertheless obtain access to the Community. Your use of the Communities is at your own risk and you should not disclose or make available your personal information in any Posting or in any Community.
You use the Communities solely at your own risk and COOL MOM neither endorses nor controls User Postings available, delivered or displayed in the Communities and COOL MOM assumes no duty to monitor or endorse Postings within the Communities, nor does COOL MOM 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 never rely upon any Posting as being 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 THE COOL MOM WEBSITE, are entirely responsible for the consequences of all your Postings on the Communities or otherwise on THE COOL MOM WEBSITE. Postings do not reflect the views of COOL MOM or any Affiliates. In no event shall COOL MOM or any Affiliates 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, 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 Communities and THE COOL MOM 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 account on THE COOL MOM WEBSITE and/or the Communities.
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 COOL MOM WEBSITE and Affiliates to use such Posting in whole or in part, throughout the universe, and you are automatically granting COOL MOM and 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, tortuous, 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 COOL MOM, 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 COOL MOM 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 COOL MOM 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.
From time to time, you may 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”) as a result of or in connection with your use of THE COOL MOM WEBSITE. All such communication, interaction and participation is strictly and solely between you and the Advertiser involved and we shall 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 purchase or obtain from any Advertiser).
12. RULES OF CONDUCT
Your use of THE COOL MOM WEBSITE is subject to 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 COOL MOM WEBSITE, or knowingly condone use of THE COOL MOM WEBSITE by others, in any manner that is, attempts to, or is likely to:
- be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
- affect us adversely or reflect negatively on us, THE COOL MOM 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 COOL MOM WEBSITE, or from advertising, linking or becoming a supplier to us in connection with THE COOL MOM WEBSITE;
- send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”;
- be used for commercial or business purposes, without the prior written consent of COOL MOM, 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 COOL MOM WEBSITE, other Users’ accounts, names, User IDs, personally identifiable information or other computers, websites or pages, connected or linked to THE COOL MOM WEBSITE or to use THE COOL MOM WEBSITE in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
- modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of THE COOL MOM WEBSITE or the rights or use and enjoyment of THE COOL MOM 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 COOL MOM WEBSITE, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so.
13. TERMINATION OF YOUR ACCOUNT
You may terminate your account and User ID, at any time and for any reason, by sending an e-mail to email@example.com with your Username, password, and e-mail address and requesting termination of your account. We may terminate your use of and account on THE COOL MOM 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.
14. WARRANTY DISCLAIMER
YOU AGREE THAT YOUR USE OF THE COOL MOM WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COOL MOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE COOL MOM WEBSITE AND YOUR USE THEREOF. COOL MOM MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE COOL MOM WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE COOL MOM WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE COOL MOM WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE COOL MOM WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE COOL MOM WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE COOL MOM WEBSITE. COOL MOM DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE COOL MOM WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COOL MOM WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL COOL MOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER PERSONS CONSTITUTING A RELEASED PARTY, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE COOL MOM WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT COOL MOM SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY, OR ANY OFFENSIVE MATERIALS OR OFFENSIVE CONDUCT OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
THE COOL MOM WEBSITE is controlled and offered by COOL MOM from its facilities in the United States of America. COOL MOM makes no representations that THE COOL MOM WEBSITE is appropriate or available for use in other locations. Those who access or use THE COOL MOM WEBSITE from other jurisdictions do so at their own volition and are responsible for compliance with local law.