Effective March 2016
Services not for Children under 13- COPPA
GameTomatoes Services
GameTomatoes Premium Services
Use of Content
FTC Endorsement Guidelines
Copyright Policy
Indemnification
PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES AND, TOGETHER WITH ALL THE OTHER TERMS AND CONDITIONS REFERRED TO BELOW, FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US REGARDING YOUR USE OF OUR WEBSITE(S) AND OTHER SERVICES.
IF FOR ANY REASON, YOU ARE UNABLE OR UNWILLING TO AGREE TO ALL OUR TERMS OF USE, PLEASE IMMEDIATELY STOP USING OR ATTEMPTING TO USE OUR WEBSITE AND OTHER SERVICES, BECAUSE IF YOU CONTINUE, YOU WILL BE AGREEING TO EVERYTHING IN OUR TERMS OF USE.
1. General
These Terms govern your use of the websites, applications and software operated by Sowards Enterprises, LLC and its subsidiaries (collectively “Sowards Enterprises” “we” “us” or “our”), and related services including emails, newsletters and sweepstakes (with the websites, applications and software, the “Service”). Additional terms and conditions of use applicable to specific areas of the Service may also be posted in such areas and, together with these Terms, govern your use of those areas and are referred to as the “Agreement.”
We reserve the right, in our discretion, to change or modify all or any part of the Terms at any time, effective immediately upon notice published on this page. Your use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by Sowards Enterprises as permitted above. Please be sure to review this Agreement periodically to ensure familiarity with the most current version. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you should immediately cease all use of the Service. It is your responsibility to refer to these Terms on accessing the Service.
COPPA: The Service is directed to teenagers and adults and is not directed to children under the age of 13. You must be 13 years of age or older to use the Service. Sowards Enterprises complies with the Children’s Online Privacy Protection Act and does not permit registration by, and will not knowingly collect personally identifiable information from, anyone under 13. By registering for any Service, you represent and warrant that you are 13 years of age or older. Additionally, you must provide true, accurate and complete registration information to become a member of the Service (“Member”). Creating a Member account under automated means or under false or fraudulent pretenses constitutes unauthorized use of the Service, and such accounts will be terminated by Sowards Enterprises.
As part of the registration process, you may be asked to select a username and password and you will be responsible for all activities occurring under your username and for keeping your password secure. We may refuse to grant you a username that impersonates someone else, is or may be protected by trademark or proprietary rights law, or is vulgar, offensive, or otherwise inappropriate, as determined by us in our sole discretion. You agree that your username and password is personal to you and should not be used to provide access to the Service to any other person or entity.
By using the Service, you represent and warrant that all registration information you submit is truthful and accurate and you agree to the accuracy of such information. In the event you compose a profile upon registering for the Service (the “Member Profile”) such profile must describe you, an individual person. Examples of inappropriate profiles include, but are not limited to, profiles that purport to represent an animal, place, inanimate object, fictional character, or real individual who is not you. If you wish to view or change your profile, you can do so via the “Updating Your Registration Information” section of the Sowards Enterprises Privacy Policy.
For GameTomatoes Services: when using particular GameTomatoes Services, you shall be subject to any posted guidelines or rules applicable to such Services, including but not limited to the Comment Culture and Moderation and Community How To’s and FAQ’s policies which can be found under GameTomatoes Community Central. All such guidelines or rules are hereby incorporated by reference into the Terms. Sowards Enterprises currently provides GameTomatoes users with access to a variety of Services, including but not limited to, community boards, user pages, wikis, and blogs. Unless explicitly stated otherwise, any new features or services shall be subject to the Terms as well as any posted guidelines or rules. In order to use certain Services, you will be required to register with GameTomatoes . In consideration of your use of the Services, you agree to: (a) provide accurate and complete information about yourself as prompted by the Services registration form (“Registration Data”), (b) maintain and promptly update the Registration Data to keep it accurate and complete, and (c) maintain the security of your password.
For GameTomatoes Premium Services: certain Services provided by Sowards Enterprises, including but not limited to GameTomatoes Prime, require registration and payment (such Services are referred to as the “Premium Services”). For questions about your GameTomatoes subscription, please visit our FAQ at http://support.gametomatoes.com. All questions that cannot be answered via the FAQ should be sent using our online form, available at http://support.gametomatoes.com Please include your name and username in all correspondence.
(a) Payment Obligation and Credit Card Authorization. You are responsible for paying any and all charges relating to your Premium Service account, including without limitation, periodic subscription fees (the initial fee and automatic renewals). You grant Sowards Enterprises’ third party payment processor permission to charge your credit card (or other approved payment mechanism) to pay for all such charges. The subscription fee will be billed at the beginning of your subscription and on each annual, quarterly or monthly renewal thereafter, dependent on the original subscription term selected at registration, unless you cancel at least 10 days prior to the renewal date pursuant to the process set forth below.
(b) Renewal and Cancellation of Your Subscription. You grant Sowards Enterprises’ third party payment processor permission to automatically renew your subscription and charge your account up to five (5) days prior to the day on which your subscription is scheduled to end. However, you may “opt out” of this automatic renewal by visiting The Support Center and canceling on your own or by using our online form to notify Sowards Enterprises. Sowards Enterprises will cancel your account upon receipt of such notification from you. All fees, charges and sales are final. Once charged to your credit card, the payments are nonrefundable, except in cases of demonstrated fraud, which will be determined at Sowards Enterprises’ sole discretion. You acknowledge that canceling your subscription for any reason will not immediately terminate access to the Premium Services and Sowards Enterprises will not refund the remaining portion of your subscription. Your subscription will remain open until the paid period expires. You acknowledge and agree that the authorization to charge your credit card or other payment mechanism for the Premium Services shall automatically transfer to any successors or assigns of the Premium Service for substantially similar services at the same property. You may not assGameTomatoes or transfer your subscription to any other person or entity. You must be at least 18 years old (or have the permission of a credit card holder who is) to subscribe for Premium Services.
Payment must be made by Visa, MasterCard, American Express or PayPal. If Sowards Enterprises does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon our demand. Your card issuer agreement governs your use of your designated card in connection with the Premium Service, and you must refer to that agreement and not the Terms to determine your rights and liabilities as a cardholder.YOU, AND NOT Sowards Enterprises, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY EVEN IF THEY WERE NOT AUTHORIZED BY YOU.
Sowards Enterprises RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY Sowards Enterprises, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT THE APPLICABLE Sowards Enterprises WEB SITE. Sowards Enterprises MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. IF ANY SUCH CHANGE IS UNACCEPTABLE TO YOU, YOU MAY CANCEL YOUR SUBSCRIPTION SERVICE BY VISITING THE SUPPORT CENTER . YOUR CONTINUED USE OF THE PREMIUM SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE. Sowards Enterprises IS NOT RESPONSIBLE FOR ANY FAILURE TO CANCEL YOUR SUBSCRIPTION EITHER IN WRITING BY EMAIL OR LETTER OR THROUGH THE WEB SITE. YOU AGREE AND ACKNOWLEDGE THAT Sowards Enterprises SHALL NOT BE RESPONSIBLE FOR ANY ADJUSTMENTS, REFUNDS OR ACCOUNT OVERSIGHTS THAT YOU HAVE NOT SUBMITTED TO US THROUGH THE SUPPORT CENTER WITHIN 60 DAYS OF SUCH OCCURRENCE OR LACK THEREOF.
There shall be no refunds, except in demonstrated cases of credit card fraud (as determined by Sowards Enterprises in its sole discretion).
(c) Termination of Your Subscription. You acknowledge that Sowards Enterprises, in its sole discretion, may terminate your ID, password, account (or any part thereof) or use of the Premium Service for a variety of reasons, including, without limitation, if Sowards Enterprises believes that you have violated or acted inconsistently with the letter or spirit of the Terms or any other agreement referred to in the Terms. Sowards Enterprises may also, in its sole discretion, at any time discontinue providing the Premium Service, or any part thereof, with or without notice. You agree that any termination of your access to the Premium Service under any provision of the Terms may be effected without prior notice, and acknowledge and agree that Sowards Enterprises may immediately deactivate or delete your account and/or bar any further access to the Premium Service. If your account is terminated by Sowards Enterprises, it will not be automatically renewed and access will be terminated, without refund. Further, you agree that Sowards Enterprises shall not be liable to you or any third-party for termination of your access to the Premium Service. YOU AGREE AND ACKNOWLEDGE THAT Sowards Enterprises SHALL NOT BE RESPONSIBLE FOR ANY ADJUSTMENTS, REFUNDS OR ACCOUNT OVERSIGHTS PAST 60 DAYS OF SUCH OCCURRENCE.
(d) Trial Memberships. Sowards Enterprises may occasionally offer promotional trial memberships to its Premium Services at special discounted prices. If you sGameTomatoes up for a trial membership, you will be automatically renewed at the normal subscription rate for the Premium Service at the end of the trial period, unless you cancel at least 24 hours before the end of the trial. You must cancel prior to the end of your trial to avoid charges to your credit card. We will continue to bill your credit card for the Premium Service at the standard Premium Service rate and renewal term thereafter, dependent on the original subscription term selected at registration, until you cancel. For information about canceling your GameTomatoes Prime subscription, visit The Support Center.
(e) Subscriber Information.You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Premium Service registration process. You must promptly inform Sowards Enterprises of any of the following: changes in the expiration date of any credit card used in connection with the Premium Service; changes in home or billing address; and apparent breaches of security, such as loss, theft, or unauthorized disclosure or use of an ID or password. You agree to notify Sowards Enterprises immediately upon learning of any potential breach of your Premium Service account.
(f) Use Restriction. The material on the Premium Services is for the private, non-commercial enjoyment of Subscribers only. Any other use is strictly prohibited. Sowards Enterprises spends a great deal of time and money to obtain the information appearing on our sites. You agree that you will not copy, publish, or in any way make available publicly any news, pictures, interviews, features, or any other information, content or materials from the Premium Services, without express written permission from Sowards Enterprises. You agree that if you do so, Sowards Enterprises reserves the right to cancel your subscription to the Premium Services immediately without refund. Additionally, reuse of copyrighted information (including but not limited to pictures, interviews, features, videos, audio, etc.) will be prosecuted to the fullest extent of the law.
2. Use of Content
You acknowledge that the Service contains information, software, articles, reviews, photographs, audio and video clips, graphics, links, logos, trademarks, the “look and feel” of our websites, applications and software and other material (collectively, the “Content”) that are protected by copyright, trademark or other proprietary rights of Sowards Enterprises or third parties. All Content on the Service is copyrighted as a collective work of Sowards Enterprises pursuant to applicable copyright law. You agree to comply with all copyright laws and any copyright notices, information, or restrictions contained in any Content available on or accessed through the Service. Users of the Service may use the Content only for their personal, noncommercial use. Businesses, organizations or other legal entities may not become Members (defined below) and are not permitted to use the Service for any purpose, including but not limited to collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of, or linking to, the Service. Please refer to our Linking Policy for more information on linking and use of Content.
Except as expressly permitted, you may not (i) modify, publish, transmit, reproduce, create derivative works from, distribute, perform, display, sell, transfer or in any way exploit any of the Content or Material (defined below), in whole or in part, or (ii) use any robot, spider, site search and/or retrieval application, or other device to retrieve or index any portion of the Service. Content consisting of downloadable software may not be reverse engineered unless specifically authorized by the owner of the software’s patent and/or copyright. You also agree not to circumvent, disable or otherwise interfere with any security related features of the Service or the Content, including features that prevent or restrict use or copying, or that enforce limitations on use.
You may post on the Service only content owned by you (such as your original statements or video clips), content for which you have received express written permission from the owner and content in the public domain (collectively, the “Material”). You assume all risk and responsibility for determining whether any Material is in the public domain. You hereby grant, transfer and assGameTomatoes to Sowards Enterprises and its successors, assigns and licensees (collectively, “Licensee”) a fully-paid, royalty-free, irrevocable, perpetual, worldwide right and license to publish, distribute, reproduce, transmit, use, translate, display, perform, modify, revise, create derivative works of and archive the Material, in any form or media now known or hereafter developed (including without limitation in print, magnetic or electronic form), on any number of occasions in any form, and to sublicense third parties (including other users of the Service) to do any of the foregoing with further right of sublicense (the “License”), without compensation to you. You represent and warrant that you are authorized to grant all rights set forth in the preceding sentence and that the exercise by Licensee of Licensee’s rights under the License shall not violate any laws, defame or libel any person, invade any person’s right of privacy or publicity or otherwise violate, misappropriate or infringe the rights of any person (including without limit any copyright or moral right).
You may download, copy and make any personal, non-commercial use of the Content and use that is expressly permitted by the United States Copyright Act of 1976, as amended (“Copyright Act”) and not prohibited by any section of the Copyright Act or by any other applicable law, rule or regulation; provided, however, that you maintain all copyright and other notices contained in such Content; and provided further that you shall not store electronically any significant portion of any Content.
To the extent that you provide us with any suggestions, feedback or other information relating to our business or the Service (including, but not limited to, suggested new products or services or improvements to existing products and services), such information is provided to us on a non-confidential and unrestricted basis, and you hereby grant to the Licensee (as defined above) a non-exclusive, worldwide, perpetual, royalty-free, fully transferrable and sublicensable right and license to reproduce, display, distribute, use and fully exploit such suggestions, feedback and information.
For questions regarding use of Content please email GameTomatoes.
3. Rules of Conduct
Sowards Enterprises has the right, but not the obligation, to investigate any illegal and/or unauthorized use of the Service and appropriate legal action may be taken, including without limitation, civil, and injunctive relief. While utilizing the Service, you may not:
Use the Service for any commercial purpose, to distribute any advertising or solicitation of funds or goods and services, or to solicit users to join competitive online services;
Post on the Service any links to any external Internet sites that are obscene or pornographic, or display pornographic or sexually explicit material of any kind;
Reformat or frame any portion of any web page that is part of the Service;
Post Material containing restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
Submit any Material that falsely implies sponsorship or endorsement of that Material by the Service and/or Sowards Enterprises, falsify or delete any author attributions in any Materials, or promote any information that you know is false or misleading;
Transmit any viruses, worms, defects, Trojan horses or other items of a contaminating or destructive nature through the Service or otherwise attempt to interfere with the proper working of the Service or the use and enjoyment of the Service by other users;
Promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or videos or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
Submit Material, or engage in any activity, that is libelous, defamatory, obscene, pornographic, abusive, harassing, threatening, and unlawful or promotes or encourages illegal activity;
Harvest or collect email addresses or other contact information of other users by electronic or other means.
The above is not a complete list of illegal and/or prohibited uses of the Service.
Use of our Service is subject to existing laws and legal process. Nothing contained in these Terms shall limit our right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Service.
4. Managing Content
Despite our rights outlined herein, you shall remain solely responsible for all Material you post. Sowards Enterprises has no obligation to pre-screen or monitor the Material you post, however Sowards Enterprises reserves the right to edit or remove any Content or Material on the Service, in whole or in part, and to disclose any information or take any action necessary to satisfy any applicable law, regulation, legal process or governmental request or to protect the rights, property or safety of Sowards Enterprises, its users and the public. You understand and agree that you may be exposed to such matters and that you further waive your right to any damages (from any party) related to such exposure.
Sowards Enterprises has the right, but not the obligation, to take any of the following actions in our sole discretion at any time and for any reason without giving you any prior notice:
Restrict, suspend, or terminate your access to all or any part of our Services;
Change, suspend, or discontinue all or any part of our Services;
Refuse, move, edit or remove any Material for any reason;
Refuse, move, edit or remove any Content that is available on our sites;
Deactivate or delete your account(s) and all related information and files in your account(s);
Disclose your identity or other information about you to any third party who claims that Material posted by you violates their legal rights, including, but not limited to, their intellectual property rights or their right of privacy;
Establish general practices and limits concerning use of our sites and Services.
You agree that Sowards Enterprises will not be liable to you or any third party for taking any of these actions. You understand and agree that our Services may include communications such as advertisements, service announcements and administrative messages from us or from our partners, and that these are considered part of the Services.
5. Endorsement
FTC Guidelines:
Sowards Enterprises MAY RECEIVE A COMMISSION, FEE AND/OR OTHER COMPENSATION ON SOME CLICKS OR PURCHASES MADE ON, THROUGH OR LINKED FROM THE SERVICE. THIS MEANS Sowards Enterprises MAY RECEIVE SOME FORM OF COMPENSATION THROUGH AN ARRANGEMENT IT HAS WITH A THIRD PARTY IF YOU (i) CLICK ON CERTAIN ADS OR LINKS ON OUR WEBSITES, EMAILS OR NEWSLETTERS, OR (ii) PURCHASE A PRODUCT OR SERVICE AFTER CLICKING A LINK.
Sowards Enterprises does not represent or endorse the accuracy or reliability of any Content or other material posted on any interactive area or elsewhere on the Service and you acknowledge that any reliance upon such Content or other material shall be at your sole risk. Any Content or other material placed on any interactive area by users represents the views of the user posting the statement, and does not represent the views of Sowards Enterprises.
The Service may contain links to sites on the Internet which are owned and operated by third parties (the “External Sites”). You acknowledge that Sowards Enterprises is not responsible for the availability of, or the content located on or through, any External Site. Any third-party content or a link to a third-party site is not an endorsement of that content or third-party site. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or the content located on such External Sites.
Typically, we do not directly sell, resell, or license any of the products or the services that we review, list, or advertise on our sites, and we disclaim any responsibility for or liability related to them. Your correspondence or related activities with third parties, including payment transactions and goods-delivery transactions, are solely between you and that third party. All product and deal information such as discount, price and availability are believed to be accurate as of the time of publication. Please verify these details with the merchant site and check the merchant’s terms and conditions before you buy. You agree that we will not be responsible or liable for any loss or damage of any sort incurred as the result of any of your transactions with third parties. Any questions, complaints, or claims related to any product or service should be directed to the appropriate vendor. However, in the event we do sell, resell, or license products or services, any terms and conditions related to your purchase or license of such products and services from us or any affiliates will be accessible on the applicable site page.
Please note that we allow certain manufacturers to license, use and/or reprint a Sowards Enterprises trademark, logo, or a review in whole or in part, in its own marketing materials and advertisements in exchange for a license fee.
6. Indemnity
You agree to indemnify, defend and hold Sowards Enterprises and its affiliates, and their respective officers, directors, owners, agents, information providers and licensors (collectively, the “Sowards Enterprises Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including attorneys’ fees) incurred by any Sowards Enterprises Party in connection with:
Your use of, or connection to, our Service;
Any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you;
The content, the quality, or the performance of Material that you submit;
Your violation of these Terms or the Privacy Policy; or
Your violation of the rights of any other person or entity
Sowards Enterprises reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Sowards Enterprises’ defense of such claim.
7. Termination of Service
Sowards Enterprises reserves the right, in its sole discretion, to restrict, suspend or terminate your access to all or any part of the Service, including the discussion areas, at any time for any reason without prior notice or liability. Conversely, you may terminate your access to the Service at any time by immediately ceasing use of the Service. If you would like to delete a particular account on the Service, please review the “Updating Your Registration Information” section of the Privacy Policy that is applicable to the property from which you accessed these Terms and use the contact instructions for the particular property at which you obtained the account. Once your access terminates, you will have no right to use the Service. The terms of this Agreement shall survive any termination of your access. Sowards Enterprises may change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any feature, database, or Content (including the discussion areas), without prior notice or liability.
8. Copyright Policy
You may not post, distribute, perform, display, transmit or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Sowards Enterprises has registered a designated agent with the Copyright Office pursuant to 17 U.S.C. §512(c). If you believe that your work has been copied and posted on the Service in a way that constitutes copyright or trademark infringement, please notify the designated agent, Sowards Enterprises, LLC at GameTomatoes and insert “Terms of Use” in the subject line.
Notification of claimed infringement must include the following:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark interest;
(b) a description of the copyrighted work(s) or trademark(s) that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the Service;
(d) your address, telephone number, and email address;
(e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or trademark owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or trademark owner or authorized to act on the copyright or trademark owner’s behalf.
If your materials have been removed due to alleged infringement of a third party’s intellectual property rights, Sowards Enterprises will notify you. If you believe your materials have been wrongly removed, you may file a counter-notification containing the following:
(a) an electronic or physical signature of the person authorized to act on your behalf;
(b) a description of the material that has been removed or to which access has been disabled and where the material was located online before it was removed or access to it was disabled;
(c) a written statement by you that under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your address, telephone number, and email address; and
(e) a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under DMCA 512 subsection (c)(1)(c) or an agent of such person.
Upon Sowards Enterprises’ receipt of such counter-notice, Sowards Enterprises will provide the complainant with your contact information so that you have the ability to resolve the issue. Please note that when we forward the counter-notification, it includes your personal information. If you are concerned about protecting your anonymity, please consult with an attorney about other options. If the matter has been resolved or the complainant does not seek a court order within the statutory time period, we generally will re-post the material.
Sowards Enterprises reserves the right to remove any materials or content alleged to be infringing without prior notice, at Sowards Enterprises’ sole discretion, and without liability to you.
In appropriate circumstances, Sowards Enterprises will also terminate your account if you are determined to be a repeat infringer.
Any person who knowingly misrepresents that material is infringing or that material was removed or disabled by mistake or misidentification may be subject to liability.
9. Disclaimer of Warranties; Limitation of Liability.
The Service and the Content are distributed on an “as is, as available” basis. None of Sowards Enterprises, third party content providers or their respective agents makes any warranties of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose, with respect to the Service, any Content or any products or services sold through the Service. Neither Sowards Enterprises nor any third party content provider warrants that any files available for downloading through the Service will be free of viruses or similar contamination or destructive features. Neither Sowards Enterprises nor any third party content provider warrants that any of the goods or services linked to or advertised in the Service comply with data protection or other relevant legislation and Sowards Enterprises accepts no liability whatsoever for any claim arising from such goods or services.
You expressly agree that the entire risk as to the quality and performance of the Service and the accuracy or completeness of the Content is assumed solely by you and Sowards Enterprises cannot guarantee the continued availability of any particular component of the Service. You specifically acknowledge that Sowards Enterprises is not responsible or liable for any unauthorized access to or alteration of your Materials, data or other transmissions entered into through the Service or for any threatening, defamatory, obscene, offensive or illegal Content or for conduct of any other party or for any infringement of another’s rights.
Sowards Enterprises SPECIFICALLY DISCLAIMS ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. Sowards Enterprises, ANY THIRD PARTY CONTENT PROVIDER AND THEIR RESPECTIVE AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION LOSS OR CORRUPTION OF INFORMATION OR DATA, LOSS OF BUSINESS OR LOST PROFITS, LOSS OF REPUTATION OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, Sowards Enterprises IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE SERVICES, LIABILITY OF Sowards Enterprises SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO ANY SERVICE OR FEATURE OF THE SERVICES PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST Sowards Enterprises, OR (II) US$100.00.
Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, the liability of Sowards Enterprises, third party content providers and their respective agents shall be limited to the greatest extent permitted by law.
IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANOTHER USER RELATED TO, ARISING FROM, OR IN ANY WAY CONNECTED WITH YOUR USE OF A SITE, YOU RELEASE Sowards Enterprises FROM ANY CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE, AND AGREE TO HOLD Sowards Enterprises HARMLESS IN CONNECTION WITH ANY SUCH DISPUTE.
10. Member Disputes
You are solely responsible for your interactions with other Members of the Service. Sowards Enterprises reserves the right, but has no obligation, to monitor disputes between you and other Members.
11. International Use
We make no claims that any Material, Service or any Content is appropriate or may be downloaded outside of the United States or outside the country where such Material, Service or any Content was produced. Access to the Material, Services or any Content may not be legal in certain countries or for certain persons. If you access any Material, Services or Content from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. You agree to comply with: i) all local rules regarding user conduct on the Internet and acceptable content; and ii) all applicable laws regarding the downloading and/or transmission of technical data and other material from or to the United States and the country in which you are located.
12. No Submission of Unsolicited Ideas
Sowards Enterprises does not accept unsolicited ideas of any kind, including ideas for: advertising; promotions; new products, technologies, processes, or materials; marketing plans; or product names. Please do not send us any such ideas or materials relating to such ideas. This is to avoid any potential misunderstanding or dispute should our products or marketing strategies seem similar to unsolicited ideas submitted to us. If, despite this request, you do send us any unsolicited ideas or materials, we make no assurances that such ideas or materials will be treated as confidential or proprietary.
13. Binding Arbitration
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York, New York before a single arbitrator. The arbitration shall be administered JAMS, pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. If the specific provision of this paragraph is found to be unenforceable, then the entirety of this Section entitled “Binding Arbitration” shall be null and void.
YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
14. Miscellaneous
We may be required by international, state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on our sites or delivering them to you through e-mail. Subject to the arbitration provision above and for all purposes of this Agreement, this Agreement shall be construed in accordance with the laws of the State of New York, without reference to principles of choice of law. You and Sowards Enterprises each irrevocably consent to the personal jurisdiction of the federal or state courts located in New York, New York, the Borough of Manhattan (the “Courts”) with respect to any action, suit or proceeding arising out of or related to this Agreement or to the Service (including without limitation any Content) and waive any objection to venue in any of the Courts for such an action, suit or proceeding (whether based on forum non conveniens or otherwise); additionally, you agree that you will not bring any such action, suit or proceeding in any court other than the Courts.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. If any inconsistency exists between the terms of this Agreement and any additional terms and conditions posted on the Service, such terms shall be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions shall control. If any provision of this Agreement is held invalid, illegal or unenforceable in any respect, (i) such provision shall be interpreted in such a manner as to preserve, to the maximum extent possible, the intent of the parties, (ii) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and (iii) such decision shall not affect the validity, legality or enforceability of such provision under other circumstances.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our sites or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The applicable Privacy Policy will be made available on the property from which you accessed these Terms. Such Privacy Policy is incorporated by reference into these Terms.
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