You acknowledge and agree that G&S may, in its sole discretion, modify, add or remove any portion of these Terms at any time and in any manner, by posting revised Terms on the Service. You may not amend or modify these Terms under any circumstances. It is your responsibility to check periodically for any changes we make to the Terms. Your continued use of the Service after any changes to the Terms means you accept the changes.
Use of the Services by Minors
The Services are intended for adults. When a minor uses the Services, the parent or guardian of that minor will be held responsible for the minor’s actions. If you are less than 13 years old, you may not download, access, or otherwise use any of the Services.
Content; Access, Use and License
Nothing in this Agreement transfers or otherwise grants any ownership rights from us to you any intellectual property of ours or of any third party; and all right, title and interest in, to and under such property will remain solely with us or such third party, as applicable. Without limitation to the foregoing, you have no right to, and will not, copy, modify, redistribute, reverse engineer, decompile, disassemble any aspect of the Service or any content delivered to you via the Service, including, without limitation, any audio or video content delivered via the Service.
If you communicate any ideas, suggestions, comments, documents, requests, proposals regarding the Services (collectively “Feedback”) to us through the Services or otherwise, you acknowledge and agree that: (1) your Feedback does not contain confidential or proprietary information or yours or any third parties; (2) such Feedback does not infringe the intellectual property or other rights of any third parties; (3) you hereby assign, perpetually and irrevocably, all worldwide rights, title and interest in, to and under any such Feedback, including any intellectual property rights therein to us, and agree to execute and deliver any assignments or other instruments or documents that we may request in order to confirm, perfect, record or enforce our rights with respect to the Feedback; provided that, if and to the extent that such assignment is not assignable under applicable laws, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback; and (4) you are not entitled to any compensation or reimbursement from us for such Feedback.
You may not either directly or through the use of any device, software, Internet site, web-based service, or other means
(i) remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms;
(iii) incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links; create, recreate, distribute or advertise an index of any significant portion of the Content.
You may not build a business utilizing Content, whether or not for profit. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including without limitation montages, mash-ups and similar videos, and merchandise, unless it is expressly permitted by G&S in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.
Further, G&S strictly prohibits any other use of the Service, including but not limited to any use that:
- violates the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights;
- uses technology or other means to access, index, frame or link to the Service (including the Content), including without limitation by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Service;
- involves accessing the Service (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of the Service and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
- introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- damages, disables, overburdens, impairs, or gains unauthorized access to the Service, including G&S’s servers, computer network, or user accounts;
- removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Service (including the Content);
- uses the Service to advertise or promote services that are not expressly approved in advance in writing by G&S;
- solicits for commercial purposes other users of the Services;
- encourages conduct that would constitute a criminal offense or give rise to civil liability;
- interferes with any other party’s use and enjoyment of the Service; or
- attempts to do any of the foregoing.
You are solely responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are solely responsible for all equipment necessary to access the Service. You may not bypass any measures that have been implemented to prevent or restrict access to the Service. Any unauthorized access to the Service by you (including any such access or use that involves in any way an account you may establish on the Service or any device you may use to access the Service) shall terminate the permission or license granted to you by G&S.
G&S reserves the right to limit or terminate your access to or use of the Service at any time without notice for any reason whatsoever. G&S neither warrants nor represents that your use of Content will not infringe rights of third parties not affiliated with G&S. Termination of your access or use will not waive or affect any other right or relief to which G&S may be entitled, at law or in equity.
You represent that any information, data and other materials you provide on or through the Service or to G&S through any other means is true, accurate, current and complete. You are responsible for updating and correcting the information you have provided. You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. Some features that may be available on the Service require registration. By registering, you agree to provide true, accurate, current and complete information about yourself.
Please retain copies of all content you submit, as G&S is under no obligation to store or return any such content you. Your submission of content will not be subject to any obligation of confidentiality, attribution, or otherwise. G&S only acts as a passive conduit for any content submitted by you, and will not be liable for any use, disclosure, or exposure of any such content, including possibly objectionable or offensive content, to you, any other user, or any third party. G&S is under no obligation to monitor any user submitted content or use of the Service, but G&S reserves the right to monitor or moderate user content, in our sole discretion, and to enforce our or a third party’s intellectual property rights in any user submitted content. G&S reserves the right to discard or remove any user submitted from the Service in its sole discretion and without any liability whatsoever.
You acknowledge that you are responsible for any content you may submit through the Service, including the legality, reliability, appropriateness, originality and copyright of any such content. You hereby represent and warrant that the any content you upload to, distribute or otherwise publish through the Service does not:
(i) contain any confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. of foreign laws;
(ii) contain software viruses or malware;
(iii) contain advertisements or solicitations of any kind, or other commercial content;
(iv) impersonate others;
(v) contain personal information, except where we expressly ask you to provide such information;
(vi) contain messages purporting to speak on behalf of G&S or containing confidential information or expressing opinions concerning G&S;
(vii) contain messages that offer unauthorized downloads of any copyrighted, confidential or private information;
(viii) contain multiple messages placed within individual folders by the same user restating the same point;
(ix) contain chain letters of any kind; or
(x) contain identical (or substantially similar) messages to multiple recipients advertising any product or service, expressing a political or other similar message, or any other type of unsolicited commercial message; this prohibition includes but is not limited to (a) functionality that may be available on the Service to send messages to people who do not know you or who are unlikely to recognize you as a known contact; (b) using the Service to connect to people who do not know you and then sending unsolicited promotional messages to those direct connections without their permission; or (c) sending messages to distribution lists, newsgroup aliases or group aliases.
The Service may contain links to other websites or resources that are operated by third parties not affiliated with G&S. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Inclusion of links to other sites or resources should not be viewed as an endorsement of the content of linked sites or resources. Different terms and conditions and privacy policies may apply to your use of any linked sites or resources. G&S is not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any such content, products or services available on or through any such linked site or resource.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, THE CONTENT, AND ANY OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, G&S DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY OR NONINFRINGEMENT; OR THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM THE SERVICE SHALL CREATE ANY WARRANTY OF ANY KIND. G&S DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, PLATFORM, OR SERVICE LINKED TO THE SERVICE, WHETHER IN TERMS OF THEIR CORRECTNESS, ACCURACY, VALIDITY, PROPRIETY, RELIABILITY, LEGALITY, SECURITY, OR OTHERWISE. G&S MAKES NO WARRANTIES THAT YOUR USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, OR SERVICE LINKED TO FROM THE SERVICE WILL NOT INFRINGE THE RIGHTS OF OTHERS; AND G&S ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH SERVICES, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY OTHER WEBSITE, APP, PLATFORM OR SERVICE LINKED TO THE SERVICE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY; RELEASE
IN NO EVENT SHALL G&S OR ITS AFFILIATES, PARENTS, SUBSIDIARIES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT PROVIDERS) (COLLECTIVELY, THE “G&S PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, ACTUAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SERVICE (INCLUDING ANY CONTENT, INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH THE SERVICE), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE G&S PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF FIVE U.S. DOLLARS ($5.00) OR THE AMOUNT YOU HAVE PAID US (IF ANY) IN THE LAST MONTH FOR THE SERVICES.
YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE THE SERVICE, G&S, AND ITS AFFILIATES, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF OUR WEBSITES, APPLICATIONS, CONTENT, OR THE SERVICE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE G&S PARTIES FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WITHOUT LIMITATION YOUR USE OF THE CONTENT). G&S RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
Trademarks and Copyrights
The trademarks, logos and service marks (“Marks”) displayed on the Service are the property of G&S or its licensors or content providers, or other parties. None of the Marks may be copied, downloaded, or otherwise exploited. You may not use frames or utilize framing techniques or technology to enclose any content included on the Service without G&S’s express written consent. Further, you may not utilize any content on or from the Service in any meta tags or any other “hidden text” techniques or technologies without G&S’s express written consent. All content (including any software programs) available on or through the Service is protected by copyright, trademark and other applicable U.S. and foreign laws.
Claims of Intellectual Property Infringement
G&S reserves the right to terminate users of the Service who are repeat copyright infringers. G&S may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts and/or memberships of users who may be infringing the intellectual property of a third party.
If you believe that Content or other material provided through the Service infringes your copyright, or your intellectual property rights have been otherwise violated, please notify G&S in accordance with the procedure set forth below. We will process each notice of alleged infringement and take appropriate action in accordance with applicable intellectual property laws. A notification of claimed copyright infringement should be emailed to G&S’s copyright agent at [email protected] (subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
ATTN: COPYRIGHT AGENT
Gunpowder & Sky, LLC
2260 South Centinela Avenue
Los Angeles, CA 90064
To be effective, the notification must be in writing and contain the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive copyright interest;
(ii) a description of the copyrighted work that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on the Service that is reasonably sufficient to enable G&S to identify and locate the material;
(iv) your address, telephone number, and, if available, email address;
(v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement by you that the above information in your notice is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material.
G&S may update this contact information from time to time without notice to you. We will post the current contact information on the Service.
Applicable Law and Venue
Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in Los Angeles County, California. However, after such request for relief has been adjudicated by such court, the remainder of the dispute will be resolved by binding arbitration as set forth herein.
Waiver of Class Action
If any content on the Service, or your use of the Service, is contrary to the laws of the place where you are when you access it, the Service is not intended for you, and we ask you not to use the Service. G&S makes no representation that every aspect of the Service is appropriate or available for use in any particular jurisdiction You are responsible for informing yourself of the laws of your jurisdiction and complying with them. When you choose to access and use the Service, you agree that you do so on your own initiative and at your own risk; you will not use the Service if you are prohibited from receiving products, services, or software originating from the United States; you are responsible for complying with local laws and regulations, if and to the extent local laws and regulations are applicable; and you specifically agree to comply with all applicable laws and regulations concerning the transmission of technical data exported from the country in which you reside. If there is a conflict between any of the terms herein and your rights in your place of residence, your rights under applicable law will control as to those specific terms.
Entire Agreement and Admissibility
Survival of Terms
Electronic Communications; Notices
When you use the Service, or send emails to G&S, you are communicating with G&S electronically. You consent to receive electronically any communications related to your use of the Service. G&S will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from G&S intended for receipt by a customer shall be deemed delivered and effective when sent to the email address you provide on the Service.
Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to:
Attention: Legal Department
Gunpowder & Sky, LLC
2260 South Centinela Avenue
Los Angeles, CA 90064
All notices regarding copyright or other intellectual property infringement issues shall be sent in accordance with our intellectual property policy described under the heading “Claims of Intellectual Property Infringement” above. If you have any questions about these Terms, or if you need to notify us about a non-legal matter, then please contact us at [email protected] or at the postal address set forth above.