Last Updated September 8, 2010
THIS AGREEMENT IS A CONTRACT.
IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS.
PLEASE READ THIS AGREEMENT CAREFULLY, AND PRINT IT, BEFORE CLICKING “I AGREE”
CLICKING “I AGREE” MEANS YOU ACCEPT THIS AGREEMENT AND UNDERSTAND THAT IT WILL BE LEGALLY BINDING ON YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT WANT THE AGREEMENT TO BE BINDING ON YOU, YOU SHOULD NOT CLICK “I AGREE.”
No Stomach For Cancer, Inc. is an approved 501(c)(3) nonprofit organization under the Internal Revenue Code, therefore all gifts made to the organization are tax deductible to the fullest extent of the law.
IN CONSIDERATION and exchange of the mutual covenants of the Parties contained herein and the mutual benefits to be received under this Agreement, the Parties agree as follows:
Acceptance of terms through use
You signify that you have read, understand and agree to be bound by this Agreement whether you are simply browsing the Site or participating in the Forums as a Registered User (collectively, “Users”).
By using the Site you are consenting to have your personal data transferred to and processed in the United States.
Changes to this Agreement. We may change or modify this Agreement (including the Policies) at any time without further notice and such changes or modifications will become effective upon being posted on the Site. We will indicate at the top of its first page the date the Agreement was last revised. If you do not agree to abide by these or any future versions of the Agreement, do not use or access (or continue to use or access) the Site. It is your responsibility to check the Site regularly to determine if there have been changes to the Agreement and to review such changes.
User Registration Data; Account Security
In order to access some features of the Site, you must create an account. You may not use the account of any other person or entity.
In addition to the other terms, conditions and covenants of this Agreement, you agree (as more fully described below) to:
- provide accurate, current and complete information about you as may be requested by any registration form on or relating to the Site (“Registration Data”);
- maintain the security of your username and password, if any;
- maintain and promptly update your Registration Data, and any other information you provide to the Corporation, to keep it accurate, current and complete; and
- be fully responsible for all use of your account and for any actions that take place using your account.
You consent and authorize us to verify your Registration Data as required for your use of and access to the Site.
You are solely and entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data transmitted while using or accessing the Site cannot be guaranteed.
The Corporation, in its sole discretion and without notice to you, may freeze or otherwise disable access to your account for a reasonable period of time to investigate any good faith suspicion the Corporation may have regarding activities occurring under your account that may be in violation of this Agreement and/or applicable law.
You agree that your failure to abide by any provision of this Agreement, the Policies or any other Corporation operating rule or policy, your willful provision of inaccurate or unreliable Registration Data, your failure to advise Us regarding changes in your Registration Data, and/or your failure to respond to inquiries from Us concerning the accuracy of your Registration Data shall be considered a material breach of this Agreement. If within ten (10) calendar days after the Corporation provides notice (in any form and via any method of delivery) to you of such material breach, you fail to provide evidence, reasonably satisfactory to the Corporation, that you have not breached your obligations under this Agreement, the Corporation may terminate your account without further notice to you.
Email and Notices. You agree that the Corporation may provide any and all notices, statements and other communications to you through the e-mail address specified in your Registration Data or, in the Corporation’s sole discretion, by mail, express delivery service, facsimile or other electronic communication sent to the respective addresses specified in your Registration Data.
License and Site Access
Contingent upon your compliance with all the terms and conditions of this Agreement, the Corporation grants you a personal, revocable, nontransferable, and non-exclusive license to access and make use of the Site, subject to the following terms and conditions:
- You do not, and do not allow any third party to, copy, modify, create a derivative work from, or attempt to transfer any right in the Site; and
- You do not download (other than page caching) or modify the Site, without the Corporation’s express written consent; and
- You do not download (other than page caching), modify or exercise any other right to any User Data (as defined in this Agreement) that you do not exclusively own, without a written license from the owner(s) thereof; and
- You do not download (other than page caching), modify or exercise any other right to any Site Content (as defined in this Agreement), without a written license from the Corporation; and
- You abide by all the terms and conditions of this Agreement, including without limitation the requirements set forth under the section of this Agreement titled User Conduct and General Practices.
The Site is protected by all applicable federal and international intellectual property laws. No portion of the Site may be reprinted, republished, modified or distributed in any form without the Corporation’s express written permission. You agree not to reproduce, reverse engineer, decompile, disassemble or modify any portion of the Site. Certain content and functionality may be licensed from third parties and all such third party intellectual property rights related thereto belong to the respective third parties.
You acknowledge that the Corporation reserves and retains exclusive ownership of the Site and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any right or license to patents, copyrights, trade secrets or trademarks with respect to the Site, and the Corporation reserves all rights not expressly granted hereunder. You shall promptly notify the Corporation in writing upon your discovery of any unauthorized use or infringement of the Site or the Corporation’s patents, copyrights, trade secrets, trademarks or other intellectual property rights. The Site contains proprietary and confidential information that is protected by applicable law.
Violations of this Agreement may result in civil and/or criminal liability. We have the right to investigate occurrences that may involve such violations and may provide information to and cooperate with law enforcement authorities in connection with such occurrences.
User Data. In this Agreement, the term “User Data” means any data, information or other materials of any nature whatsoever you upload, enter or post on, at or through the Site, or by any other means, in the course of registering for, implementing and/or using the Site.
You acknowledge, consent and agree that the Corporation may access, preserve and disclose your account information and User Data if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of the Corporation, its Users and the public.
User Conduct and General Practices
Without limiting any other provision of this Agreement, you agree not to use the Site in any unlawful manner or, without limitation, to:
- harvest or collect email addresses or other contact information from others by electronic or other means;
- damage, disable, overburden or impair the Site;
- use automated scripts to collect information from or otherwise interact with the the Site;
- upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
- upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- upload, post, transmit, share, store or otherwise make publicly available any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
- upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- intimidate, “stalk” or harass another;
- upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- use or attempt to use another’s account, or create a false identity on the Site;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) pursuant to Section 219 of the Immigration and Nationality Act; and/or
- upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of the Corporation, is objectionable or which may expose the Corporation or its Users to any harm or liability of any type.
You understand that the technical processing and transmission of your User Data may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You agree that the Corporation has no responsibility or liability for the deletion or failure to store any communications, User Data or Site Content. You further acknowledge that the Corporation reserves the right to modify these general practices and limits from time to time.
The Corporation reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that the Corporation shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site.
The Corporation plays no role, financial or otherwise, in any transaction between you, the Community Foundation or any other User, credit card company or online payment processing vendor.
By accepting this Agreement you expressly warrant and represent the following to the Corporation and acknowledge that the Corporation is relying upon such warranties and representations:
- That all factual assertions you have made and will make to us are true and complete; that you have reached the age of majority and are otherwise competent to enter into contracts in your jurisdiction; and that in any event you are at least 18 years of age.
- That you agree you are receiving a benefit by being permitted to use the Site in accordance with this Agreement.
- That you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to submit User Data on the terms provided herein and to grant the Corporation the licenses set forth herein.
- That no other rights, approvals, consents, licenses and/or permissions are required from any other person or entity to submit your User Data on the terms provided herein or to grant the Corporation the licenses set forth herein.
- That your User Data does not infringe on the personal, privacy, publicity or intellectual property rights of any person or entity, and that neither it nor the act of submitting it to the Corporation is otherwise actionable at law or equity.
- That you have neither intentionally nor with gross negligence submitted any User Data containing or producing any virus or other harmful code or other information that could damage or otherwise interfere with our computer systems or data and/or that of our Users.
- You agree to sign and deliver to the Corporation any additional documents that the Corporation may request to confirm the Corporation’s rights and your warranties and representations under this Agreement, without the necessity of additional consideration.
- You acknowledge that the Corporation is relying upon the representations, warranties and covenants you have made herein. You agree to and hereby do indemnify the Corporation, its members, directors, officers, affiliates, sponsors, employees, agents licensees, assigns, customers and corporate affiliates against, and hold them harmless from, any loss, expense (including reasonable attorney fees and expenses), or damage occasioned by any claim, demand, suit, recovery, or settlement arising out of any breach or alleged breach of any of the representations, warranties or covenants made herein or arising out of any failure by you to fulfill any of the representations, warranties, or covenants you have made herein.
- You are solely responsible at your own cost and expense for creating backup copies and replacing any User Data you post or store on the Site or otherwise provide to the Corporation.You shall retain all ownership rights in and to your User Data. Notwithstanding, when you post, transmit or share User Data, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the storage of such User Data.
You understand and agree that the Corporation may in its sole discretion retain server copies of User Data that have been removed or deleted.
THE CORPORATION DOES NOT CONTROL USER DATA POSTED TO THE SITE AND THE CORPORATION EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USER DATA.
Co-Branding, Framing, Metatags and Linking
Except as specifically authorized herein, you may not co-brand the Site. For purposes of this Agreement, “co-branding” means to display a name, logo, trademark, or other means of attribution or identification of the Corporation in such a manner as is reasonably likely to give the impression that you have the right to display, publish, or distribute the Site or content accessible within the Site. You agree to cooperate with the Corporation in causing any unauthorized co-branding immediately to cease.
You may not frame or use framing techniques to enclose any Corporation trademark, logo, or other proprietary information (including but not limited to images, text, page layout, and form) without the Corporation’s express written consent. You may not include the Corporation’s name or trademarks in any metatags or any other “hidden text” without the Corporation’s express written consent.
You are granted a limited, revocable, nonexclusive license to create a hyperlink to the Site’s home page, provided that you comply with all of the following:
- The link must be a text-only link clearly marked “Be Strong Heartedâ” or “No Stomach For Cancer” or www.BeStrongHearted.org or www.NoStomachForCancer.org;
- The link, when activated by any person, must display the Site full-screen and not within a “frame” on the linking or any other site;
- The link may not use any Corporation logo or other proprietary graphic or trademark as part of the link without the Corporation’s prior express written permission; and
- The appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with our name and trademarks or create any false appearance that we are associated with or sponsor the linking or any other site.
We reserve the right to revoke this license to link at any time in our sole discretion, without notice.
Any unauthorized activity by you as set forth in this provision shall result in the immediate and automatic termination of your account and all permission, rights and/or licenses granted to you by the Corporation, and may also result in such additional action as the Corporation deems necessary to protect and enforce its legal rights.
Third Party Websites and Content
You understand that the Site may contain links to third party web sites that are not owned or controlled by the Corporation (“Third Party Sites”) and that Third Party Sites may contain advertisements, products, pictures, graphics, photographs, trademarks, logos, text, comments, messages, information, audiovisual work, sound recordings, musical compositions, lyrics, and other works and intellectual property (without limitation, “Third Party Content”) that is not owned or controlled by the Corporation.
Without in any way limiting any other provisions of this Agreement, the Corporation makes no representations whatsoever about any Third Party Site or Third Party Content that you may access through the Site. When you access any other website, you understand that it is entirely independent from the Site, and that the Corporation has no control over the content of such website nor of its policies. The Corporation will not and cannot investigate, monitor, censor or edit the content of any Third Party Sites or Third Party Content. It is up to you to take precautions to ensure that Third Party Sites and Third Party Content are free of such items as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature. If you access any Third Party Site or use or install any Third Party Content, you do so at your own risk.
By using the Site you expressly release the Corporation from any and all liability arising from your use of any Third Party Site or Third Party Content.
Copyright and Trademark Notices
Except for User Data, all content included on the Site, including but not limited to text, directions, graphics, logos, layout, design, button icons, images, data compilations, code and source code, multimedia content (including but not limited to images, illustrations, audio and video clips), html and other mark up languages, all scripts within the Site or associated therewith and all other work and intellectual property of any type or kind, whether patentable or copyrightable or not (hereinafter, without limitation, “Site Content”), is the property of the Corporation or its content suppliers and is protected by United States and international copyright laws with All Rights Reserved. The compilation of all Site Content on the Site is the exclusive property of the Corporation and is protected by United States and international copyright laws with All Rights Reserved. All software used on this site is the property of the Corporation or its software suppliers and is protected by United States and international copyright laws with All Rights Reserved.
The trademarks BE STRONG HEARTEDâ, NO STOMACH 4 CANCER, NO STOMACH FOR CANCER and all logos, URLs and trade dress related to the Site (collectively, “Our Marks”) are exclusively owned by the Corporation. Other trademarks, service marks, logos, labels, product names and appearing in Site Content and not owned by the Corporation or its subsidiaries, are the property of their respective owners.
You agree not to copy, display or otherwise use the Marks without the Corporation’s prior written permission. The Marks may never be used in any manner likely to cause confusion, disparage or dilute the Marks and/or in connection with any product that is not authorized or sponsored by the Corporation.
You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any Site Content.
Special Admonitions for International Use
We make no representation that products or services available on or through the Site are appropriate or available for use in locations other than the United States of America. Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
We reserve the right to limit the availability of the Site to any person, geographic area or jurisdiction, at any time and in our sole discretion.
Digital Millennium Copyright Act (DMCA) Policy and Notification
Section 512 of the Copyright Law of the United States (17 U.S.C. §512) limits liability for copyright infringement by service providers if the service provider has designated an agent for notification of claimed infringement by providing contact information to the Copyright Office and through the service provider’s website. No Stomach For Cancer, Inc. has designated an agent to receive notification of alleged copyright infringement (our agent is identified below). This notification is made without prejudice or admission as to the applicability of the Digital Millennium Copyright Act, 17 U.S.C., Section 512, to No Stomach For Cancer, Inc.
How to report a claim of infringement
If you believe that any of your exclusive rights under United States copyright law have been violated in a manner that constitutes infringement, and that the allegedly infringing material is accessible on the Site or through No Stomach For Cancer, Inc. as an online service provider, you must notify our designated agent.
The law requires that to be valid, your claim of copyright infringement must be written and addressed to our agent (identified below) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party 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
- 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.
When filing an infringement claim, please include any URLs identifying the allegedly infringing material along with any other information that might assist our agent’s investigation of your claim.
Upon receipt of a valid claim (i.e., a claim in which all required information is substantially provided) No Stomach For Cancer, Inc. will undertake to have the disputed material removed from public view. We will also notify the user who posted the allegedly infringing material that we have removed or disabled access to that material. No Stomach For Cancer, Inc. has no other role to play either in prosecuting or defending claims of infringement, and cannot be held accountable in any case for damages, regardless of whether a claim of infringement is found to be true or false.
Please note: If you materially misrepresent that material infringes your copyright interests, you may be liable for damages (including court costs and attorneys fees) and could be subject to criminal prosecution.
How to make a counter notification
- If you are a User and you feel that material that you have placed online that has been removed following an infringement complaint is in fact NOT an infringement, you may file a counter notification. Section 512 (g)(3) requires that to be valid, the counter notification must be written and addressed to our agent (identified below) and must provide the following information (again, the list below comes straight from the statute; if you do not understand the language please seek independent advice):
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has 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
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Our designated agent will present your counter notification to the person who filed the infringement complaint. Once your counter notification has been delivered, No Stomach For Cancer, Inc. is allowed under the provisions of Section 512 to restore the removed material in not less than ten or more than fourteen days, unless the complaining party serves notice of intent to obtain a court order restraining the restoration.
It is No Stomach For Cancer Inc.’s policy to terminate users who are found to be repeat infringers.
No Stomach For Cancer, Inc.’s designated agent is Karen E. Chelcun Schreiber.
By e-mail: copyright@NoStomachForCancer.org (Subject line: DMCA)
Disclaimer of Warranties.
You acknowledge that the Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and that the Corporation shall not be responsible to you or others for any such interruptions, errors or problems or for discontinuance of the Site.
A possibility exists that the Site could include inaccuracies or errors, or information or materials that violate this Agreement. Although we attempt to ensure the integrity of the Site, we make no guarantees as to their completeness or correctness. In the event that a situation arises in which the Site’s completeness or correctness is in question, you agree to contact us including, if possible, a description of the material to be checked, as well as information sufficient to enable us to contact you. We will make best efforts to address your concerns as soon as reasonably practicable.
The Corporation disclaims any and all responsibility for the deletion, failure to store, misdelivery or untimely delivery of any information or User Data. The Corporation disclaims any and all responsibility for harm resulting from downloading or accessing any information, User Data or Site Content on the Internet or through the Site.
THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN, ARE PROVIDED “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FOR PURPOSES OF THE SEVERAL PARAGRAPHS CONSTITUTING THIS DISCLAIMER, “THE CORPORATION ” SHALL INCLUDE, WITHOUT LIMITATION, ITS MEMBERS, DIRECTORS, OFFICERS, AFFILIATES, SPONSORS, EMPLOYEES, AGENTS, LICENSEES, ASSIGNS, CUSTOMERS AND CORPORATE AFFILIATES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AND WITHOUT PREJUDICE TO DISCLAIMERS FOUND ELSEWHERE IN THIS AGREEMENT, THE CORPORATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE CORPORATION DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF ANY CORPORATION PRODUCT OR SERVICE. THE CORPORATION DISCLAIMS ANY AND ALL WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE. NO OPINION, ADVICE OR STATEMENT OF THE CORPORATION (INCLUDING ITS USERS OR VISITORS) WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. THE CORPORATION DISCLAIMS ANY AND ALL WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS APPEARING ANYWHERE ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED ANYWHERE ON THE SITE. THE CORPORATION DOES NOT WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND YOUR RELIANCE THEREON. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, INFORMATION OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION OR DATA.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS.
Limitation of Liability.
FOR PURPOSES OF THE SEVERAL PARAGRAPHS CONSTITUTING THIS LIMITATION OF LIABILITY, “THE CORPORATION” SHALL INCLUDE, WITHOUT LIMITATION OF THIS DEFINITION, ITS MEMBERS, DIRECTORS, OFFICERS, AFFILIATES, SPONSORS, EMPLOYEES, AGENTS, LICENSEES, ASSIGNS, CUSTOMERS AND CORPORATE AFFILIATES. THE CORPORATION IS NOT RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO USE OR MISUSE OF OR RELIANCE ON THE SITE OR ANY LINKED SITE, EVEN IF THE CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL THE CORPORATION’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED $100. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NONPERFORMANCE OF THE SITE OR ANY CORPORATION PRODUCT OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE THAT THIS LIMITATION HAS BEEN FULLY NEGOTIATED AND REPRESENTS A FAIR ALLOCATION OF RISK.
THE CORPORATION DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS, DOCUMENTATION, OR ANY OTHER INFORMATION, SERVICES, PRODUCT OR OTHER MATERIAL WHICH IS OBTAINED THROUGH OR MAY BECOME A PART OF THE SITE.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS OR LIMITATIONS.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL THE CORPORATION BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, EPIDEMIC, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site (“Submissions”) provided by you to the Corporation are non-confidential and shall become the sole property of the Corporation. You hereby assign to the Corporation all exclusive rights, including all intellectual property rights, to Submissions and the Corporation shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without notice, attribution or compensation to you.
Your rights under this Agreement are not assignable.
This Agreement is binding on the Parties and their respective heirs, legatees, executors, successors and assigns. Except for Policies and other agreements incorporated by reference herein, this Agreement is the entire agreement between the Parties and supersedes all prior written or oral agreements between the Parties relating to the subject matter hereof, including but not limited to any and all prior written or oral representations made by any independent Corporation agent. If any portion of this Agreement is found to be void or unenforceable, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved. The Parties’ various rights and remedies hereunder shall be construed to be cumulative.
This Agreement shall be deemed to have been made in the United States of America, State of Wisconsin, and it shall be governed by the substantive laws of the State of Wisconsin without regard to any applicable conflict of laws provisions. The Parties submit to jurisdiction in the state and federal courts sitting in Dane County, Wisconsin, USA, and you hereby waive any jurisdictional, venue or inconvenient forum objections. Provided, however, that if the Corporation is sued in another jurisdiction on a matter giving rise to a claim under this Agreement, you consent and submit to such other jurisdiction and venue.
Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. Nothing in this Agreement shall be construed or deemed to create any partnership, agency, joint venture, employment or franchise relationship between the Parties.
Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.
No breach of this Agreement by the Corporation shall be deemed material unless you shall have given the Corporation written notice of such breach, and the Corporation shall fail to cure such breach within thirty (30) days after its receipt of such notice.
All notices required to be sent to the Corporation under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to No Stomach For Cancer, Inc., c/o Russell Law, 402 Gammon Place, Suite 270, Madison, WI 53719.
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 the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You agree to defend, indemnify and hold the Corporation harmless against any losses, expenses, costs or damages (including any reasonable attorneys’ fees and costs) arising from, incurred as a result of, or in any manner related to any claim or action based upon your breach of the terms and conditions of this Agreement. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval.
Acceptance of Electronic Contract. You agree that this Agreement has the same legal force and effect as a written contract with your written signature and that it satisfies any laws that require a writing or signature, including any applicable statute of frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You acknowledge that you have had the opportunity to print this Agreement.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.