Terms of Use

 

Welcome to the iSpot.tv, Inc. ("iSpot," "We," "Us" and similar formatives) web site and online services (including the Spot Analytics, Spot Channels and Spot Enterprise solutions described on the web site; collectively referred to herein as the "iSpot Site"). The following Terms of Use for the iSpot Site is a legal contract between you, any company or organization you represent ("You," "Your," and similar formatives), and iSpot regarding Your use of the iSpot Site. Visitors to and users of the iSpot Site are referred to individually as "User" and collectively as "Users".

 

PLEASE CAREFULLY READ THE FOLLOWING TERMS OF USE. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE ISPOT SITE, YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING A BENEFIT AND HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE "TERMS"). IF YOU REPRESENT AN ORGANIZATION, YOU AGREE, REPRESENT AND ASSERT THAT YOU HAVE THE AUTHORITY TO BIND YOUR ORGANIZATION TO THESE TERMS.

 

1. Privacy Policy

 

Your privacy is important to iSpot. iSpot's Privacy Policy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully for information relating to iSpot's collection, use, and disclosure of Your personal information.

 

2. Additional Guidelines

 

Unless explicitly stated otherwise, all services and features of the iSpot Site are provided on a per-user basis; each individual within Your organization is required to separately agree to these Terms and, if required, to separately pay to obtain access to the iSpot service or feature (e.g. for Spot Analytics or other "Premium Features," defined below) by each such individual accessing the service or feature. When using the iSpot Site, You will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the "Guidelines"), such as a requirement of payment for a subscription or a flat-rate for certain services or features. All such Guidelines are hereby incorporated by reference into these Terms.

 

3. Modification of these Terms

 

iSpot reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. Please check these Terms and any Guidelines periodically for changes. Your continued use of the iSpot Site after the posting of changes constitutes Your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective as soon as posted on the iSpot Site or, if not allowed by law to be effective immediately, then as soon as you "accept" the changes or thirty days after they are posted on the iSpot Site, whichever occurs sooner.

 

4. Limited Right to Embed iSpot Player in Personal Site

 

Subject to these Terms, You are granted a limited, non-exclusive right to embed the iSpot Player found on the iSpot Site on another site for noncommercial purposes, provided such placement of the iSpot Player is via the embed code or proprietary player provided by iSpot on the iSpot Site and such placement of the iSpot Player (a) does not portray iSpot or any of its products, services, or commercials in a false, misleading, derogatory or otherwise defamatory manner, and (b) is not placed on a site or location that contains any adult or illegal material or any material that is offensive, harassing or otherwise inappropriate or objectionable to iSpot (in iSpot’s sole discretion), and (c) does not infringe any right of any third party including intellectual property rights or link to infringing or inappropriate content. This limited right may be revoked by iSpot at any time upon notice, and iSpot reserves the right to prevent embedding the iSpot Player in any site We deem inappropriate, in Our sole discretion.

 

 

As used in these Terms, "Promotional Content" shall mean written works, images, videos, websites, rights of personality, software and other tangible and intangible intellectual property which promotes or advocates for a good, service, or political viewpoint and includes, for example, advertisements, movie trailers, show promotions, infomercials, public service announcements, and other works which generally pay to be publicized or published. Also as used in these Terms, a "Registered Brand User" shall mean a user of the iSpot Site who registers an account with iSpot representing an organization, which iSpot account entitles the organization to an online "channel" in the iSpot Site where Your organization’s Promotional Content (also referred to as, "Your Promotional Content";) appears and which account includes reports relating to Your organization's Promotional Content or which account provides the organization with Spot Analytics and/or other data services. Other users of the iSpot Site who register as non- Registered Brand Users shall be referred to herein as "Registered End Users."

 

5.1 User Content Generally

 

You may be the author of and/or otherwise be authorized to control intellectual property rights in Promotional Content as well as all other written works, images, videos, websites, rights of personality, software and other tangible and intangible intellectual property (collectively, "User Content"). iSpot may now or in the future permit You and others to post to the iSpot Site and/ or link the iSpot Site to Your User Content and iSpot may host, share, and/or publish User Content posted by You to the iSpot Site. You understand that whether or not such User Content is published, iSpot does not guarantee any confidentiality with respect to any submissions.

 

5.2.1 Limited License Grant to iSpot for User Content Posted by You

 

By submitting or distributing User Content on or through the iSpot Site, You hereby grant to iSpot a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, distribute and re- distribute Your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).

 

5.2.2 Limited License Regarding Promotional Content not Posted by You

 

iSpot may find and obtain Your Promotional Content on and from the Internet and/or national television. iSpot obtains Your Promotional Content to identify Your Promotional Content, to provide access to the Promotional Content, and to provide information regarding where the Promotional Content was and may be found. By becoming a Registered Brand User of the iSpot Site, You agree that iSpot is licensed to search for, index, collect, select screen shots of, and link to Your Promotional Content and You agree that iSpot is licensed to incorporate Your Promotional Content into the iSpot Site and to license the Promotional Content to third parties to derive "fingerprints" of the Promotional Content, to download copies of the Promotional Content onto up to two computers, but only for internal research purposes and with an express prohibition against the preparation of derivatives thereof, provided that such incorporation into the iSpot Site and/or further publication or reproduction by third parties is not associated with pornography, disparagement of Your organization, or any illegal or unlawful activity or publication. You further agree that iSpot provides reasonable attribution to You by including Your trademark, copyright, patent, and other intellectual property notices as these may be found by iSpot in the Promotional Content, that iSpot’s incorporation of the Promotional Content into the iSpot Site has a positive effect on the potential market for and/or value of copyright interests you may have in the Promotional Content, irrespective of Your becoming a Registered Brand User of the iSpot Site, and that You will not bring any copyright or trademark infringement claims against iSpot relating to iSpot’s use of the Promotional Content as described herein. iSpot agrees that Your license to iSpot regarding the Promotional Content is revocable by You, provided that You follow iSpot’s Copyright Policy and provide iSpot with a DMCA takedown notice (as discussed in the Copyright Policy).

 

5.3 User Content and Promotional Content Representations and Warranties

 

You are solely responsible for Your User Content and the consequences of posting or publishing Your User Content to the iSpot Site. By uploading and publishing Your User Content to the iSpot Site and by allowing iSpot to continue to incorporate Your Promotional Content into the iSpot Site after You become a Registered Brand User, You affirm, represent, and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize iSpot and iSpot’s Users to use and distribute Your User Content and Promotional Content as necessary to exercise the licenses granted by You in this Section and in the manner contemplated by iSpot and these Terms of Use; (2) Your User Content and Promotional Content do not and will not: (a) infringe, violate, or misappropriate any third- party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (3) Your User Content and Promotional Content do not contain any viruses, adware, spyware, worms, or other malicious code. VIOLATORS OF THIRD-PARTY RIGHTS MAY BE SUBJECT TO CRIMINAL AND CIVIL LIABILITY. ISPOT RESERVES ALL RIGHTS AND REMEDIES AGAINST ANY USER WHO VIOLATES THESE TERMS OF USE.

 

5.4 User Content and Promotional Content Disclaimer

 

You understand that when using the Site You will be exposed to User Content and Promotional Content from a variety of sources, and that iSpot is not responsible for the content of such User Content and Promotional Content (including, without limitation, the accuracy, usefulness, or intellectual property rights of or relating to such User Content and Promotional Content). You further understand and acknowledge that You may be exposed to User Content and Promotional Content that are inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against iSpot with respect thereto. iSpot does not endorse or adopt any User Content or Promotional Content or any opinion, recommendation or advice expressed therein, and iSpot expressly disclaims any

 

and all liability in connection with User Content and Promotional Content. If notified by a User or a content owner of a User Content or Promotional Content that allegedly does not conform to these Terms of Use, iSpot may investigate the allegation and determine in its sole discretion whether to remove the User Content and Promotional Content, which it reserves the right to do at any time and without notice. For clarity, iSpot does not permit copyright infringing activities on the Site.

 

5.5 License to You

 

You may have purchased or been given single-user access to an iSpot service, such as Spot Analytics, Spot Channels, or another similar service which may, for example, provide Analytics relating to Promotional Content and/or screen shots or video of or from Promotional Content, all of which may be referred to as "Premium Features." "Analytics" as used herein may include information in a webpage, spreadsheet or CSV form, which information may include titles and other metadata associated with Promotional Content, where and when the Promotional Content was found, and other information relating to the Promotional Content. In conjunction with such purchase or access grant to the Premium Features, iSpot grants You, individually, a limited, terminable, license to download and view the User Content, the Promotional Content, and the Analytics but only for INTERNAL RESEARCH PURPOSES and only by you, personally, and not all the individuals in Your Organization, which license iSpot may revoke at any time and which license You agree is not sub-licenseable nor assignable. With respect to Analytics, iSpot agrees that this license allows You to share your individual work product which you create following your use of the Analytics with an unlimited number of people within or without of Your organization, PROVIDED HOWEVER that such work product includes only a limited subset of or your summary or consolidation of the Analytics (You agree that each separate person accessing the Analytics, whether in Your organization or not, should pay iSpot for such access). With respect to User Content and Promotional Content, You agree that this license does not grant you the right to prepare derivatives of any downloaded User Content and Promotional Content and You agree not to engage in further reproduction of downloaded User Content or Promotional Content. For example and without limitation, You agree that You may not publish or make available downloaded User Content or Promotional Content or Analytics on any website, streaming media service, or similar media accessing or provisioning service. 6.

 

6. Copyright Policy

 

It is iSpot's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act or other Copyright laws. For more information, please go to iSpot's Copyright Policy.

 

7. Prohibited Conduct

 

BY USING THE ISPOT SITE YOU AGREE NOT TO:

 

7.1 Use the iSpot Site for any purposes other than to view content on the iSpot Site and you agree not to share content from the iSpot Site using methods not provided by iSpot;

 

7.2 Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined below);

 

7.3 Post anything on the iSpot Site including, but not limited to, comments, screen names, personal information, or trivia questions, that is unlawful, that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, or that disparages any film clip on the iSpot Site, or any person appearing in or talent associated with any film clip on the iSpot Site, as determined in iSpot's sole discretion;

 

7.4 Post any iSpot content on a third party site or service that is unlawful, that a reasonable Promotional Content;

 

7.7 Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the iSpot Site. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;

 

7.8 Use the iSpot Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;

 

7.9 Defame, harass, abuse, threaten or defraud Users of the iSpot Site, or collect, or attempt to collect, personal information about Users or third parties without their consent;

 

7.10 Use the iSpot Site if You are under the age of 13 years old, or access portions of the iSpot Site which are for Users over 21 years old if You are under the age of 21;

 

7.11 Remove, circumvent, disable, damage or otherwise interfere with security-related features of the iSpot Site, features that prevent or restrict use or copying of any content accessible through the iSpot Site or User Content or Promotional Content, or features that enforce limitations on the use of the iSpot Site or User Content or Promotional Content;

 

7.12 Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the iSpot Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

 

7.13 Modify, adapt, translate or create derivative works based upon the iSpot Site or any part thereof, including Promotional Content, except and only to the extent expressly allowed by applicable law; or

 

7.14 Intentionally interfere with or damage operation of the iSpot Site or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.

 

7.15 Scrape, copy or extract any data contained on the iSpot Site or provided by any iSpot service, whether via automated or manual methods, for any use, unless granted an explicit license for a specific use by iSpot.

 

8. Account

 

If You register an account with iSpot, whether as a Registered Brand User or as an End User, You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. You agree that the information You provide to iSpot on registration and at all other times will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify iSpot. You may be liable for the losses incurred by iSpot or others due to any unauthorized use of Your iSpot Site account.

 

9. Third-Party Sites, Products and Services; Links

 

The iSpot Site may include links or references to other web sites or services solely as a convenience to Users ("Reference Sites"). iSpot does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the iSpot Site are solely between You and such advertiser. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.

 

10. Termination; Terms of Service Violations.

 

10.1 TERMINATION BY ISPOT

 

You agree that iSpot, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with iSpot or Your use of the iSpot Site and remove and discard all or any part of Your account, and any User Content and Promotional Content, at any time. iSpot may also in its sole discretion and at any time discontinue providing access to the iSpot Site, or any part thereof, with or without notice. You agree that any termination of Your access to the iSpot Site or any account You may have or portion thereof may be effected without prior notice, and You agree that iSpot will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies iSpot may have at law or in equity. As discussed herein, iSpot does not permit copyright infringing activities on the iSpot Site, and will terminate access to the iSpot Site, and remove all User Content or other content submitted by any Users who are found to be repeat infringers.

 

10.2 TERMINATION BY YOU

 

Your only remedy with respect to any dissatisfaction with (i) the iSpot Site, (ii) any term of these Terms of Use, (iii) Guidelines, (iv) any policy or practice of iSpot in operating the iSpot Site, or (v) any content or information transmitted through the iSpot Site, is to terminate this Terms of Use and Your account. You may terminate this Terms of Use at any time by deleting Your account with the iSpot Site and discontinuing use of any and all parts of the iSpot Site.

 

11 Ownership; Proprietary Rights

The iSpot Site is owned and/or operated by iSpot. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the iSpot Site provided by iSpot (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. The rights for certain content available for viewing on the iSpot Site, such as Promotional Content, TV commercials and related images, are owned by the advertiser displayed on the same page. Such content is displayed in accordance with our Copyright Policy. Except for any User Content and Promotional Content, all Materials contained on the iSpot Site are the property of iSpot or its subsidiaries or affiliated companies and/or third-party licensors or the third-party advertisers displayed next to each work. Except in any User Content and Promotional Content, all trademarks, service marks, and trade names are proprietary to iSpot or its affiliates and/or third-party licensors and advertisers. Except as expressly authorized by iSpot, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. iSpot reserves all rights not expressly granted in this Terms of Use.

 

12. Indemnification

You agree to indemnify, save, and hold iSpot, its affiliated companies, contractors, employees, agents and its third-party suppliers, third-party advertisers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the iSpot Site, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. iSpot reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify iSpot, and You agree to cooperate with iSpot's defense of these claims. iSpot will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

 

13. Disclaimers; No Warranties

 

13.1 No Warranties

 

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ISPOT, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ISPOT OR THROUGH THE ISPOT SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 13 THE TERM ISPOT INCLUDES ISPOT’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

 

13.2 "As is" and "As available" and "With All Faults"

 

YOU EXPRESSLY AGREE THAT USE OF THE ISPOT SITE IS AT YOUR SOLE RISK. THE ISPOT SITE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER POSTINGS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ISPOT SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

 

13.3 Content

 

ISPOT, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER POSTINGS, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ISPOT SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

 

13.4 Accuracy

 

ISPOT, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ISPOT SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

 

13.5 Harm to Your Computer

 

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE ISPOT SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPRERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

 

14. Limitation of Liability and Damages

 

14.1 Limitation of Liability

 

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ISPOT OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD- PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE ISPOT SITE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH ISPOT, EVEN IF ISPOT OR A ISPOT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ISPOT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

14.2 Limitation of Damages

 

IN NO EVENT WILL ISPOT OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ISPOT SITE OR YOUR INTERACTION WITH OTHER ISPOT SITE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE ISPOT SITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

 

14.3 Reference Sites

 

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN ISPOT AND RECEIVED THROUGH OR ADVERTISED ON THE ISPOT SITE OR RECEIVED THROUGH ANY REFERENCE SITES.

 

14.4 Basis of the Bargain

 

YOU ACKNOWLEDGE AND AGREE THAT ISPOT HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ISPOT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ISPOT. ISPOT WOULD NOT BE ABLE TO PROVIDE THE ISPOT SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

 

14.5 Limitations by Applicable Law

 

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

 

14.6 Consumer End Users (Outside of the USA).

 

This Section 14.6 applies only to Users residing and using the iSpot Site outside of the United States. The limitations or exclusions of warranties and liability contained in this Terms of Use do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of business outside of the USA. The limitations or exclusions of warranties, remedies or liability contained in this Terms of Use apply to You to only the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.

 

15. Miscellaneous

 

15.1 Notice

 

iSpot may provide You with notices, including those regarding changes to these Terms of Use, by email, regular mail or postings on the iSpot Site. Notice will be deemed given twenty-four hours after email is sent. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the iSpot Site. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the iSpot Site is deemed given 30 days following the initial posting or immediately when You view the posting, whichever occurs sooner.

 

15.2 Waiver

 

The failure of iSpot to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by iSpot.

 

15.3 Dispute Resolution and Arbitration

 

(a) Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Washington, without giving effect to any principles of conflicts of law.

 

(b) Arbitration. For any claim related to these Terms of Use or the iSpot Site, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either iSpot or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or iSpot will be filed only in the state or federal courts in and for King County, Washington, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in Section 15.3(b) regarding arbitration. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.

 

(d) Improperly Filed Claims. All claims You bring against iSpot must be resolved in accordance with this Section 15.3. All claims filed or brought contrary to this Section 15.3 shall be considered improperly filed. Should either party file a claim contrary to this Section 15.3, the other party may recover attorneys' fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.

 

15.4 Severability

 

If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

 

15.5 Assignment

 

These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You other than to an entity which acquires substantially all of Your Assets, but may be assigned by iSpot without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.

 

15.6 Survival

 

Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, section 5 and sections 10 through 15.

 

15.7 Headings

 

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

 

15.8 Entire Agreement

 

These Terms, the Privacy Policy, the Copyright Policy, and other Guidelines constitute the entire agreement between You and iSpot relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms, Privacy Policy or Guidelines made by iSpot as set forth in Section 3 above.

 

 

YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ISPOT SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.