1. INTRODUCTION AND ACCEPTANCE
Welcome to balconyoffog.com. balconyoffog.com (“Website”) is an interactive online service operated by TooFar Media (“us,” “we,” or “our,”).
2. INTELLECTUAL PROPERTY
3. WEBSITE ACCESS AND USE
(i) copy, capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit in whole or in part the Website, Website Content or Website code, or otherwise use the Website, Website Content or Website code on any other web site, other networked computer environment, or in any medium now known or hereafter developed;
(ii) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Website or Website Content;
(iii) circumvent, disable or otherwise interfere with security-related features of the Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
(iv) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Website Content for any purpose without the express written permission of TooFar Media. Notwithstanding the foregoing, TooFar Media grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
(v) collect or harvest any personally identifiable information from the Website including, without limitation, user names, passwords, email addresses;
(vi) solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
(vii) attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same;
(viii) decompile, reverse engineer, or disassemble any portion of any the Website;
(ix) use network-monitoring software to determine architecture of or extract usage data from the Website;
(x) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership (as defined in Section 5(B)) without permission, etc.);
(xi) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
(xii) engage in any conduct that restricts or inhibits any other user from using or enjoying the Website.
(D) TooFar Media makes no representation that the Website and its content and any copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the United States of America. Those who choose to access the Website from locations outside of the U.S.A. do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
4. CONDITIONS FOR LINKING TO WEBSITE
We hereby grant you a non-exclusive, limited license, revocable at our discretion, for you to link to the Website home page from any site you own or control that is not commercially competitive with the Website and does not criticize or otherwise injure us, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material or that violates the spirit of our mission. Such a link is not an endorsement of such other site(s) by us. All of our rights and remedies are expressly reserved.
5. USER REGISTRATION
(A) In order to access or use some features of the Website, you will have to become a registered user. If you are under the age of thirteen, then you are not permitted to register as a user or otherwise submit personal information to TooFar Media.
(B) If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you may have the opportunity to create a user name and password (a “Membership”), which may permit you access to certain areas of the Website not available to non-registered users. As part of your Membership, you will be responsible for creating, and maintaining the confidentiality of, your user name and password. We ask that you select a user name other than your real name or the real name of any other person. We also urge you to memorize your password or keep it in a secure place, as sharing your password with others may lead to unauthorized access to your account and the information therein. TooFar Media will not be liable for any losses caused by any unauthorized use of your account, but you may be liable for the losses of TooFar Media or others due to such use.
(C) You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under your Membership, whether or not you have authorized the activity. You agree to notify us immediately at email@example.com of any breach of security or unauthorized use of your Membership.
6. USER CONTENT
(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available on the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on the Website. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary, third party proprietary rights, including, without limitation, privacy and publicity rights or other third party right of any person or entity;
(ii) impersonates another or is false, inaccurate, misleading, unlawful, threatening, abusive, hateful, harmful, disruptive, racially or ethnically-motivated, libelous, defamatory, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
(vi) contains a formula, instruction, or advice that could cause harm or injury;
(vii) is a chain letter of any kind;
(viii) the licensed use by us hereunder would result in us having any obligation or liability to any party;
(ix) contains viruses or any other technologies that may harm the Website or the interests or property of our users and partners;
(x) harvests or otherwise collects information, including email addresses, about users or third parties whose information is made available on the Website, without their consent;
(xi) comprises a robot, spider, scraper or other automated means to access the Site or the Services for any purpose without our express written permission; or
(xii) intentionally or unintentionally violates 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 Website; Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
(E) By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
(F) We have the right, but not the obligation, to monitor User Content. TooFar Media is not responsible for the content or substance of the User Content. TooFar Media reserves the right to delete, move, or edit User Content that it, in its sole discretion, deems to be abusive, defamatory, obscene, in violation of copyright or trademark laws, or in violation of any person’s rights of privacy or publicity, or otherwise unacceptable. Please exercise caution and common sense when viewing User Content. We have no obligation to post, maintain or otherwise make use of User Content and do not guarantee distribution of User Content. We may discontinue operation of the Website, or your use of the Website, in either case in whole or in part, in our sole discretion. You have no right to maintain or access your User Content on the Website and we have no obligation to return your User Content or otherwise make it available to you. TooFar Media will have no obligation to pay you any compensation with respect to its use or nonuse of the User Content
(G) The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion. If you become aware that User Content you have submitted includes any material for which you lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, you agree to promptly provide us with detailed written notice thereof to TooFar Media 500 Stone Pine Road, Box 3169 Half Moon Bay, CA 94019 or firstname.lastname@example.org.
7. WEBSITE CONTENT & THIRD PARTY LINKS
(A) We provide the Website including, without limitation, Website Content for entertainment, educational and promotional purposes only. You may not rely on any information and opinions expressed on any of our Website for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content.
(C) If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release TooFar Media and its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
(D) The Website now or in the future may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
The Website may include certain services that may be available via your mobile phone, including without limitation (a) the ability to upload to the Website via your mobile phone (Mobile Uploads), (b) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (c) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the “Mobile Services”). Your carrier’s normal messaging, data and other rates and fees will apply. You should check with your carrier to find out what plans are available and how much they cost. By using the Mobile Services you agree that we may communicate with you regarding the Website by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, TooFar Media AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE OR WEBSITE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY WORKMANLIKE EFFORT, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (6) WARRANTIES THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE WEBSITE, WEBSITE CONTENT OR WEBSITE CODE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, WEBSITE CONTENT, WEBSITE CODE, THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE, WEBSITE CONTENT, WEBSITE CODE, OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON; AND (7) WARRANTIES OR REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, WEBSITE CONTENT, OR WEBSITE CODE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT TooFar Media) ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEBSITE, WEBSITE CONTENT AND WEBSITE CODE, AS WELL AS THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE ARE ANY DEFECTS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TooFar Media OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11. LIMITATION ON LIABILITY
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
(B) If you become a registered user, you may terminate your Membership at any time by sending an e-mail to email@example.com.
13. COPYRIGHT POLICY
(A) TooFar Media respects the intellectual property rights of others and expects its users to do the same. In appropriate circumstances and at its sole discretion, TooFar Media may terminate and/or disable the Membership of users who it suspects to be infringers of the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in its sole discretion, TooFar Media may remove or disable access to material on any of its websites or hosted on its systems that may be infringing or the subject of infringing activity.
(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to: TooFar Media, Attn: Copyright, 500 Stone Pine Road, Box 3169 Half Moon Bay, CA 94019
(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing a written notification of claimed infringement that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
14. CHOICE OF LAW; JURISDICTION AND VENUE
15. DISPUTE RESOLUTION; BINDING ARBITRATION
In the Dispute Resolution Section only, “we” and “us” are used to refer to you and TooFar Media together.
(ii) If either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent to: TooFar Media 500 Stone Pine Road, Box 3169 Half Moon Bay, CA 94019. We agree to make attempts to resolve the dispute. If we cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration.
(iii) The FAA applies to this Agreement and arbitration provision. We each agree the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
(vi) We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the dispute must be brought in court.
(vii) The prevailing party in the arbitration will be entitled to recover its costs and expenses, including reasonable attorneys’ fees and experts’ fees, which are incurred in connection with the arbitration.
(C) Either of us may bring qualifying claims in small claims court.
(E) All claims you bring against us must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim contrary to this section, we may recover reasonable attorney’s fees and costs, provided that we have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim within thirty (30) days of such notice.
16. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
17. NO TRIAL BY JURY
18. AMENDMENT; ADDITIONAL TERMS
19. TERRITORIAL RESTRICTIONS
Software related to or made available by the Website may be subject to United States export controls. Thus, no software from the Website may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) 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 any software related to the Website, 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. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
20. CHANGES IN WEBSITE OWNERSHIP