THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Effective Date: June, 18 2018
Welcome to the Linkpoint360, LLC (hereinafter “Linkpoint360,” “we” or “us”) website at http://www.linkpoint360.com (including all content under the “linkpoint360.com” domain name, and referred to herein as the “Website”). We provide the Website and any associated services, products, data, information, tools, software, updates and materials (altogether, the “Services”), subject to your agreement to and compliance with the terms and conditions set forth in this document (the “Agreement”). Please carefully read this Agreement that governs your access to and use of the Website and Services. If you do not agree and consent to this Agreement, please do not use the Website and/or the Services.
1. IMPORTANT NOTICES
A. As long as you are in compliance with all the terms and conditions of this Agreement, we hereby grant to you during the Term (as defined below) a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to use the Website, and to access and receive the Services thereon that are intended for public display or access. Any rights not explicitly granted in this Agreement are strictly withheld and reserved by us.
B. You agree that (i) except in your normal use of the Website, you will not copy or distribute any part of the Website or Services in any medium without our prior written authorization; (ii) you will not alter or modify any part of the Website or Services other than as is necessary to use the Website or Services for their intended purposes; and (iii) you will otherwise comply with this Agreement.
A. You agree that you will not violate any applicable law or regulation in connection with your use of the Website or Services.
B. You agree that you will not distribute, upload, make available or otherwise publish through the Website or Services any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, graphics, text, information, links, profiles, personal information, name, likeness, audio, photos, software, music, sounds, video, comments, messages, tags or similar materials (“Submissions”) that:
- are unlawful or encourage another to engage in anything unlawful;
- contain a virus or any other similar malicious software that may damage the operation of our or another’s computers;
- infringe upon any copyright, patent, trademark, trade secret, right of privacy, right of publicity or other right of any person or entity;
- are false, inaccurate, fraudulent or misleading; or
- are libelous, defamatory, obscene, inappropriate, abusing, harassing, threatening or bullying.
C. You further agree that you will not do any of the following:
- modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Website or Services;
- interfere with or disrupt the operation of the Website or Services, including restricting or inhibiting any other person from using the Website or Services by means of hacking or defacing;
- transmit to or make available in connection with the Website or Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
- attempt to probe, scan or test the vulnerability of the Website or Services or to breach our security or authentication measures;
- take any action that imposes an unreasonable or disproportionately large load on our infrastructure, as determined in our sole discretion;
- harvest or collect the email addresses or other contact information of other users of the Website or Services;
- scrape or collect any content from the Website or Services via automated means;
- submit or post false, incomplete or misleading information to the Website or Services, or otherwise provide such information to us; or
- impersonate any other person or business.
D. In addition, we reserve the right to review, edit or remove any Submissions, however, we are not required to routinely screen, monitor or review Submissions on the Website or Services. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY SUCH SUBMISSIONS, AND YOUR RELIANCE ON ANY SUCH INFORMATION IS AT YOUR OWN RISK.
E. You agree that you are not licensed to access any portion of the Website or Services that we have not made public or accessible, and you may not attempt to override any security measures in place on the Website or Services.
F. Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your access to the Website or Services shall not be limited to violations of this Restrictions section.
A. Some parts or all of the Website or Services may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend these eligibility requirements at any time. You are not eligible to use the Website or Services if doing so would violate any applicable law or regulation, including but not limited to U.S. export controls or restrictions.
B. You must be over the age of 18 to engage in Transactions (as defined below) on the Website or use the Services. By engaging in a Transaction or using the Services, you represent that you meet this minimum age requirement. In any case, you affirm that you are over the age of 13, as the Website and the Services are not intended for use by children under 13. If you are under 13 years of age, then please do not use the Website without the consent of your parent or guardian. Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your Internet service provider for more information.
5. FEES, TRANSACTIONS AND PAYMENTS
B. You may be required to register your personal and/or financial information with us in order to use certain areas of the Website or the Services, for example, to access/provide Submissions or to initiate Transactions. In doing so, you agree that you will provide accurate and complete information. We may refuse to process your information or requested Transactions if we believe that you may be: i) impersonating another person; ii) violating the intellectual property or other rights of any entity; iii) posting Submissions that is offensive; or iv) providing any information that we may otherwise reject for any or no reason in our sole discretion.
C. We may use a third-party payment processor (the “Payment Processor”) to charge Fees to you. You agree to pay us, through the Payment Processor, all charges for purchases made by you, and you authorize us, through the Payment Processor, to charge your chosen payment provider (e.g., credit card) (your “Payment Method”).
D. We will automatically charge your Payment Method when payments are due, as more fully identified on the Website. If you purchase a subscription for Services, it may result in recurring charges to your Payment Method, and you agree that we may charge such amounts until such time as your subscription expires, is terminated or you cancel the subscription, depending on the subscription type.
E. WE MAY SUBMIT PERIODIC CHARGES TO YOU WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE COULD REASONABLY ACT.
F. Your account will be considered delinquent if payment in full is not successful when a charge is initiated. Unless specified in an invoice, amounts due are exclusive of all applicable taxes, levies, or duties, and you will be responsible for payment of all such amounts. If you believe that any specific charge under this Agreement is incorrect, in order to obtain a credit, you must contact us in writing within thirty (30) days after the payment due date, and set forth the nature and amount of the requested correction. Otherwise, charges are final.
G. In addition to other applicable remedies, we reserve the right to suspend and/or terminate your access to the Services and/or terminate this Agreement if your Payment Method is declined or fails and your account therefore is delinquent.
H. If you wish to cancel your subscription, you may do so at any time through your account. Any charges incurred prior to cancellation are non-refundable. If you upgrade your subscription, you will be charged the difference in your current subscription and the upgraded subscription at that time, and you will be charged the price for the upgraded subscription on an ongoing basis until cancellation. If you downgrade your subscription, you will be charged the reduced price at the beginning of the next subscription term.
6. SUBMISSIONS PROVIDED TO US
A. You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of your Submissions. In order for us to provide the Services to you or for promotion of our Services, however, we require your permission to process, display, reproduce and otherwise use Submissions you make available to us. Therefore, if you choose to submit any Submissions (including your name, likeness and other personal information) to the Website or Services, or otherwise make any Submissions available through the Services, you hereby grant to us a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Submissions, including without limitation distributing part or all of the Submissions in any media format through any media channels.
B. By submitting any Submissions to us you hereby agree, warrant and represent that: (a) the Submissions do not contain proprietary or confidential information, and your provision of the Submissions does not violate any third-party’s rights; (b) all such Submissions are accurate and true, (c) we are not under any confidentiality obligation relating to the Submissions; (d) we may use or disclose the Submissions in any way; and (e) you are not entitled to compensation or attribution from us in exchange for the Submissions.
C. You acknowledge that we are under no obligation to maintain any Submissions that you submit, post or make available to or on the Website or Services. We reserve the right to withhold, remove and or discard any such materials at any time.
7. CONTENT SHARED THROUGH THE SERVICES
You understand that by sharing information on the Website or Services, and requesting information to be sent through the Services, you may be revealing information about yourself and/or your business that you may include or that may be generated by the Services. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we are not responsible or liable in any way in connection with such sharing.
8. LINKS TO THIRD PARTY WEBSITES
9. OUR INTELLECTUAL PROPERTY
A. Our graphics, logos, names, designs, page headers, button icons, scripts and service names are our trademarks, trade names and/or trade dress. The “look and feel” of the Website and Services (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark laws. All product names, services names, trademarks and service marks (“Marks”) are either our property or the property of their respective owners, as indicated. You may not use the Marks for any purpose whatsoever other than as permitted by this Agreement.
B. You acknowledge that i) the software used to provide the Services, and all enhancements, updates, upgrades, corrections and modifications to such software (the “Software”), ii) all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections or modifications) and iii) all documentation therefor, are the sole and exclusive property of us and/or our licensors. This Agreement does not convey title or ownership to you, but instead gives you only the limited use rights set forth herein.
C. To the extent that you gain access to or receive any copies of the Software, you agree that you will delete such copies of the Software upon any termination of this Agreement, termination of your use of the Services, or at our request.
10. TERM AND TERMINATION
A. The “Term” of this Agreement will continue until the Agreement is terminated as provided herein. We reserve the right to terminate this Agreement and/or deny all or some portion of the Website or Services to any user, in our sole discretion, at any time.
B. Without limiting the foregoing or assuming any additional legal obligations, we reserve the right to terminate violators of the Copyright Act, in accordance with applicable law. All rights that you grant to us herein related to Submissions shall survive any termination of this Agreement. Further, your representations, warranties and indemnification obligations herein shall survive any termination of this Agreement.
C. You may terminate this Agreement at any time by ceasing use of the Website or Services, and by closing your account.
11. DISCLAIMERS AND LIMITATION ON LIABILITY
A. We do not represent or warrant that access to the Services will be error-free or uninterrupted, and we do not guarantee that users will be able to access or use the Services, or their features at all times. We reserve the right at any time to modify or discontinue (temporarily or permanently) the Services, or any part thereof, with or without notice.
B. The Website or Services may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions, and to change or update information at any time without prior notice.
C. Although we have the right to review, edit, remove or modify information from or on the Website or Services, we may not screen this material or control the sources of this information, and we do not guarantee the accuracy, suitability, completeness, currency, quality, adequacy or applicability of any such information.
D. BY USING THE WEBSITE AND/OR SERVICES YOU AGREE AND ACKNOWLEDGE THAT WE PROVIDE THE WEBSITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
E. USE OF THE WEBSITE AND/OR SERVICES IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEBSITE AND/OR SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS BY USERS, VIRUSES OR OTHER HARMFUL COMPONENTS.
F. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE WEBSITE AND/OR SERVICES, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
G. Notwithstanding the foregoing, in the event that a court shall find that any of the above disclaimers are not enforceable, then you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of the greater of the Fees you have paid to us during the most recent twelve (12) month period or $100.00, or (2) any indirect, incidental, punitive, special, exemplary or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Website or Services. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
H. SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold harmless us and our officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) your use of and access to the Website or Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; (iv) any claim that any of your Submissions caused damage to a third party; or (v) any conduct, activity or action that is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Website or Services. This defense and indemnification obligation will survive any termination or expiration of this Agreement or your use of the Website and/or Services.
13. DISPUTES, GOVERNING LAW AND JURISDICTION
A. You agree that any claim or dispute arising out of or relating in any way to your use of the Website, Services or any service provided by us, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
B. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, may award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
C. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our address specified in the Notice section, below.
D. Arbitration under this Agreement will be conducted by the American Arbitration Association (“AAA”) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
E. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we both agree that we have each waived any right to a jury trial.
F. Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
G. Any dispute or alleged claim you may have with respect to your access or use of the Website or Services must be commenced within one (1) year after the occurrence of the events leading to the dispute or alleged claim.
H. The laws of the State of New Jersey shall govern this Agreement. Any arbitration shall be held in New Jersey (the “Dispute Resolution Location”). To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Website, Services or us, may only be brought by you in a state or federal court located in the Dispute Resolution Location. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION.
A. Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
B. Revisions. This Agreement may only be revised in a writing signed by us or posted by us to the Website or Services. In the event that we update this Agreement and you are made aware of the update, your continued use of the Website or Services after the update shall constitute an agreement to the updated terms.
C. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Website or Services.
D. Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent. Any unauthorized assignment shall be null and void.
E. No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
F. Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of irreparable harm or other damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
G. Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Website or Services, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
H. Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: Linkpoint360, LLC, 68 White Street, Suite 2, Red Bank, NJ 07701 Attn: Glenn Lehner.