Terms and Conditions of Use
(End User License Agreement)
PLEASE READ THESE TERMS & CONDITIONS (“TERMS”) BEFORE USING THE SERVICES. THEY ARE THE RULES AND REQUIREMENTS THAT APPLY TO THE SERVICES. DO NOT REGISTER FOR AN ACCOUNT, OR USE THE SERVICES IF YOU ARE NOT IN AGREEMENT WITH THESE TERMS.
Welcome to OwnItU.com, which is owned and operated by Own It U, LLC (“Company,” “we,” “us” or “our”). By registering an account for, or using OwnItU.com, including all of the services provided therein, and any other websites and applications that link to these Terms (collectively, the “Services”), you acknowledge that you have read and understand these Terms, and agree to be bound by them. Both these Terms and separate terms of service or sale documents may apply to your use of the Services, service or product offered via the Services (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. In these Terms, “you” refers to Adult Users of the Services and purchasers of accounts. An “Adult” is a person of legal age who can enter into a contract in the state in which the user resides; by or using the Services, you represent and warrant that you are an Adult, and that you will be responsible for ensuring that any child or student authorized by you to use and access the Services does so in accordance with these Terms.
1. Services Ownership and License:
A. Ownership: As between us and you, the Services (including past, present and future versions) are owned and controlled by us and their Content is protected by U.S. and international copyright, trademark, trade dress, patent, and other intellectual property rights and laws to the fullest extent possible. “Content” means all text, graphics, user interfaces, visual interfaces, photographs, logos, sounds, music, artwork, and computer code displayed on or available through the Services and the design, structure, selection, coordination, expression, and arrangement of such materials including, without limitation, (i) materials and other items relating to us and our products and services, including, without limitation, all activities, printables, characters, photographs, audio clips, sounds, pictures, videos, and animation; (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including ours (collectively, “Trademarks”); and (iii) other forms of intellectual property.
B. Limited License: Subject to your strict compliance with these Terms and the Additional Terms and your payment of any applicable fees, we grant you a limited, non-exclusive, revocable, non-assignable and non-transferable license (“License”) to access, display, view, use, play, and/or print copies of the Content on a personal computer, mobile phone or other wireless device, or other Internet-enabled device (each, an “Internet Device”) for your personal, non-commercial use only (e.g., teachers may use Content from the Services for educating their students and other users’ use is limited to personal use). The License does not give you any ownership of, or any other intellectual property interest in, any Content or the Services, and you cannot otherwise use the Content or the Services without our express prior written permission. All rights not expressly granted to you are reserved by us and/or our licensors and other third parties. Except as expressly provided in these Terms or with Company’s express prior written consent, no part of the Services and no Content may be used, copied, reproduced, distributed, uploaded, posted, publicly displayed, translated, transmitted, broadcasted, sold, licensed or otherwise exploited for any purpose whatsoever. Any unauthorized use of any Content or the Services for any purpose is prohibited.
2. Services and Content Use Restrictions:
You agree that you will not: (i) engage in any activities that (a) attempt to or do harm to us, the Services or any others; (b) are unlawful, false, inaccurate, misleading, offensive, obscene, lewd, violent, harassing, threatening, abusive, tortious, defamatory, invasive of another’s privacy, or are otherwise objectionable to us, in our sole discretion; or (c) violate any right of any third party; (ii) reverse engineer, disassemble, or modify any source or object code or any software or other products, services, or processes accessible through the Services, install any software, file, or code on the Services that is not authorized by Company, or attempt to do so; (iii) engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services; (iv) access or collect information from the Services using automated means (such as through scripts, robots scrapers, or spiders); (v) use any meta tags or other “hidden text” utilizing any of our Trademarks; (vi) interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on the use of or access to the Services or its Content; (vii) use the Services for commercial or political purposes; (viii) disclose, harvest, or otherwise collect information, including email addresses, or other private information about any third party without that party’s express consent; or (ix) otherwise violate these Terms, or any Additional Terms, or solicit, encourage, or facilitate anyone else to do so.
3. Governing Law/Jurisdiction:
A. Governing Law/Jurisdiction: THESE TERMS, AND ANY ADDITIONAL TERMS, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
B. Arbitration and Dispute Resolution:
Resolution. If any controversy, allegation, or claim arises out of or relates to the Services or these Terms (collectively, “Dispute”), you and we agree to the following resolution process with respect to the Dispute. To most efficiently resolve any Dispute, you and we agree to first discuss the Dispute informally for at least thirty (30) days. To do so, the party who wants to raise the Dispute must first send to the other party a notice that must include (1) a description of the Dispute and (2) a proposed resolution (together, the “Dispute Notice”). If you want to raise a Dispute, you must send your Dispute Notice by certified mail to us at: 2753 E. Broadway Road, Suite 101-259, Mesa, AZ 85204. If we would like to subsequently discuss your Dispute Notice with you, we will contact you by using contact information included with your Dispute Notice. If we want to raise a Dispute, we will send our Dispute Notice to you at the email address we have on file for you. If we do not have a valid email address on file for you, we will send our Dispute Notice to you through a means that complies with the service of process rules in the state of Arizona.
If you and Company do not reach an agreed-upon resolution within 30 days of receipt of the Dispute Notice, you and Company agree that the Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be heard and determined by a single neutral arbitrator who is a lawyer or retired judge, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. In resolving the Dispute, the arbitrator will consider applicable law, the provisions of these Terms and any Additional Terms, and any facts based upon the record and no other basis, and will issue a reasoned decision. If a party properly submits the Dispute to the AAA for arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) and determined by a single neutral arbitrator who is a lawyer or retired judge, using JAMS’ Streamlined Arbitration Rules and Procedures, or by any other arbitration administration service to which you and we consent. You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 JAMS: 800.352.5267
(i) Nature, Limitations, and Location of Alternative Dispute Resolution: In arbitration, as with a court, the arbitrator will resolve the submitted Dispute and can issue a decision consistent with this Section 3. However, WITH ARBITRATION, THERE IS NO JUDGE OR JURY; THE ARBITRATION PROCEEDINGS AND ARBITRATION ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES; AND JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules, but if applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this Section 3 to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered into any court that has jurisdiction over the parties.
(ii) Small Claims Matters Are Excluded: Either of us may bring a qualifying claim of Disputes in small claims court.
C. Injunctive Relief: The foregoing provisions of this Section 3 will not apply to any legal action taken by either party to seek an injunction or other equitable relief in conjunction with any intellectual property claim or claim related to unauthorized access to data through the Services (including, but not limited to, claims related to patent, copyright, trademark, and trade secrets, and claims relating to the access or retrieval of data through the Services using an automated process such as scraping).
D. Timing of Claim: To help resolve any issues between you and us promptly and directly, you and Company agree that any Dispute Notice must be sent, or that any small claims or injunctive relief complaint permitted under this Section 3, must be filed within one year after the events giving rise to the Dispute arise; otherwise, the Dispute is waived.
E. No Class Actions: You and Company agree that any Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.
4. Disclaimer of Representations and Warranties:
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK.
THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, we and our parent, affiliates, subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- The Services;
- The functions, features, or any other elements on, or made accessible through, the Services;
- Any products, services, or instructions offered or referenced at or linked through the Services;
- Whether the Services (and their Content), or the servers that make the Services available, are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Internet Device);
- The specific availability of the Services, and whether any defects in the Services will be repaired, or will be repaired in a particular time frame; and
- Whether your use of the Services is lawful in any particular jurisdiction.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties, so the above disclaimers may not apply to the extent that such jurisdictions’ laws are applicable.
5. Limitations of Liability:
UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- The Services;
- Your use of or inability to use the Services, or the performance of the Services;
- The failure of a child user to learn or otherwise benefit educationally from their use of the Services;
- Any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Services;
- Any action taken in connection with copyright or other intellectual property owners or other rights owners;
- Any errors or omissions in the Services’ technical operation; or
- Any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, inaccuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, force majeure, telecommunications failure, or destruction of the Services).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS EXCEED THE AMOUNT PAID BY YOU TO US DURING THE PREVIOUS TWELVE MONTHS FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION.
To the maximum extent allowed by law, you agree to indemnify, defend and hold harmless the Company Parties from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from: (a) your breach or alleged breach of these Terms; (b) your use of the Services or activities in connection with the Services; (c) your violation of any law, rule or regulation; or (d) your violation of any third party rights. The Company Parties reserve the right to assume, at their sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Company Parties in asserting any available defenses. You will not, in any event, settle any claim without our prior written consent. If any child you authorize to use or access the Services disaffirms any or all of these Terms, you agree to defend, indemnify and hold us harmless for any damages we suffer by the child’s disaffirmance.
7. Infringement Policy and Reporting Procedure:
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), our designated agent to receive notices of copyright infringement is _______________, who may be reached by email at firstname.lastname@example.org
, or by postal mail at _________________. If you believe that your material has been posted on, or distributed via, the Services in a way that constitutes copyright infringement, please provide the following information to ______________ as required by the DMCA: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “complaining party”); (ii) identification of the copyright work(s) claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party; (v) a statement that the complaining party (name, address, telephone number, and email address) has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The DMCA provides that a person who knowingly materially misrepresents that material or an activity is infringing may be subject to liability. We may send the information in the notice from the complaining party to the person who provided the allegedly infringing material.
8. Wireless Features:
The Services may offer certain features and services that are available to you via your wireless Internet Device (collectively, “Wireless Features”). Your carrier may charge standard messaging, data, and other fees, which may appear on your wireless bill or be deducted from your prepaid balance. Your carrier may prohibit or restrict certain Wireless Features, and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties. If you have registered via the Services for Wireless Features, then you agree to notify us of any changes to your wireless number (including phone number) and update your Account to reflect the changes.
9. Submission of Feedback:
Under certain circumstances, we might ask Adult Users for feedback or ideas as to their experiences with our Services. If you choose to provide us with feedback, you acknowledge and agree (i) that you have no expectation of review, compensation, or consideration of any type for any such feedback or ideas, and (ii) we will be free to use and exploit such feedback or ideas in our discretion and without compensation or obligation to you.
10. General Provisions:
A. Termination and Suspension: We reserve the right to discontinue the Services or suspend or terminate your access to it, including any Accounts submitted by you, at any time, without notice, for any reason and without any obligation to you or any third party. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, or otherwise violates these Terms, then we may suspend or terminate your Account or deny you access to all or part of the Services. Any suspension or termination will not affect your obligations to us, including any payment obligations to us, and you will not be entitled to a refund of any payments. Upon suspension or termination of your access to the Services, or upon notice from us, your License to use the Services will terminate immediately.
B. Communications: When you communicate with us electronically, such as via a Services communication tool, you consent to receive communications from us electronically. Please note that we will do our best to respond to your inquiry, but it may take us some time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
C. Operation of Services; International Issues: We control and operate the Services from our headquarters in Mesa, Arizona. If you use the Services from other locations, you are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply (e.g., any local education regulatory or data privacy laws). You and we disclaim any application of the Convention on Contracts for the International Sale of Goods.
D. Severability: Interpretation:If any provision of these Terms, or any Additional Terms, is for any reason deemed unenforceable by a court or arbitrator, you agree that every attempt will be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement will continue in full force and effect. You agree that these Terms, and Additional Terms, will not be construed against us because we drafted them.
E. Assignment: We may assign our rights and obligations under these Terms, or any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms, and any Additional Terms, may not be assigned by you, and you may not delegate your duties under them.
F. No Waiver: No waiver by us of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized agent of OWN IT U, LLC
G. Updates to Terms: We reserve the right to modify these Terms, or any Additional Terms, from time to time in our sole discretion (“Updated Terms”). You agree that any Updated Terms will be effective immediately upon our posting them on the Services and, if you have an Account, either by displaying an alert next to the link to the Terms, displaying an alert upon log-in to the Services, or by directly communicating them to you (e.g., via the email address associated with your Account), provided that (i) any modification to Section 3 related to dispute resolution shall not apply to any Dispute initiated prior to the applicable modification, and (ii) any modification to provisions related to fees and billing shall not apply to fees incurred prior to the applicable modification. If you do not cancel your Account within 7 days after receiving notice of Updated Terms as described above, or if you continue to use the Services after receiving notice of Updated Terms, you agree to comply with, and be bound by, the Updated Terms.
H. Contact Us: Us. If you have any questions or concerns with respect to these Terms or the Services, you may contact us at 714-758-5441
Terms and Conditions Effective As of July 1, 2014