TERMS AND CONDITIONS OF USE FOR THE INTUWIN.COM/CHERRYCOKE WEBSITE
This Terms and Conditions of Use ("TCU" or "Agreement") is made by and between Intuwin LLC and Intuwin.com/CherryCoke (ÒWe,Ó ÒUs,Ó or ÒOurÓ) and ÒYou,Ó the user of this website (ÒsiteÓ). Use of this site is provided to You subject to this Agreement, which may be updated or modified from time-to-time at Our sole discretion. You hereby agree as follows:
BY PLACING A CHECK MARK WHERE INDICATED ON OUR REGISTRATION FORM STATING, "I AM AT LEAST 13 YEARS OLD, AND I HAVE READ AND AGREE TO THE TERMS & CONDITIONS OF USE AND PRIVACY POLICY," YOU REPRESENT AND WARRANT THAT YOU (OR YOUR PARENT OR LEGAL GUARDIAN IF YOU ARE A MINOR AT OR OVER THE AGE OF THIRTEEN (13) AND UNDER THE AGE OF EIGHTEEN (18)) HAVE READ AND UNDERSTAND THIS AGREEMENT AND OUR PRIVACY POLICY, WHICH ARE INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU. OUR SITE WILL INDICATE IF THIS AGREEMENT IS AMENDED OR MODIFIED BY US AT ANY POINT AFTER YOUR INITIAL ACCEPTANCE OF ITS TERMS. ANY USE OF THE SITE BY YOU AFTER ANY AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.
1. License. Subject to the terms and conditions set forth in this Agreement, We agree to provide You with access and use of Our site. There is no fee paid by You and no purchase is necessary. Your access to the site is provided pursuant to a free, limited, revocable, and non-exclusive license provided by Us.
2. Accessibility. You understand and agree that the site may, at times, be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment or communications malfunctions; (ii) periodic maintenance, repairs, or administrative reviews which We may undertake from time-to-time; or (iii) causes beyond Our control or which are not foreseeable by Us.
3. Equipment. You shall be solely responsible for providing, maintaining, and ensuring compatibility with the site, all hardware, software, electrical, and other physical requirements for Your use of Our site, including, but not limited to, telecommunications and internet access connections and links, web browsers or other equipment, and programs or services required to access and use Our site.
4. Proprietary Rights. All or portions of this site are proprietary to Us and are protected by intellectual property laws and treaties, including, but not limited to, copyright, trademark, service mark, trade secret, and/or patent laws. You agree to use this site for Your own personal use only and shall not copy, duplicate, display, transmit, distribute, modify, reverse engineer, or prepare derivative works for any other purpose unless We give You express written permission to do so.
5. No Redistribution or Resale. You agree not to reproduce, duplicate, copy, sell, resell, lease, distribute, redistribute, or exploit any portion of Our site, its use, or any access to it, for commercial purposes.
6. No Interference or Circumvention. You agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else from using, implementing, or employing any automated or manual device, process, or program (e.g. robot, spider, spyware, adware etc.) designed: (a) to monitor, observe, track, gather, collect, copy, or transmit any of the content, data, or user information contained on Our site; or (b) to deliver promotional, advertising, marketing, commercial, or non-commercial material to users (e.g. pop-up advertisements) without Our express written permission. You further agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else from using, implementing, or employing any automated or manual device, process, or program that interferes, circumvents, encumbers, or attempts to interfere, circumvent, or encumber the operation or administration of Our site.
7. Linking and Framing. You agree not to bypass or attempt to bypass the home page of Our site and Òdeep linkÓ to any other page in Our website, or frame Our content within another website, or copy or use in another medium without Our express written permission.
8. License. By submitting any content to Our site, You grant to Us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable, and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology now known or hereinafter developed for the full term of any rights that may exist in that content. You also agree to waive and never assert any moral rights that You may have in the content submitted to Us.
9. Unacceptable Use and Content Policy.
(a) You are solely responsible for any and all acts and omissions that occur while You use Our site, and You shall not engage in any unacceptable uses, which includes, but is not limited to, use of the site to:
(1) disseminate, store or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail (also known as ÒspamÓ);
(2) disseminate or transmit content that is abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious;
(3) disseminate, store, or transmit files, text, graphics, software, or other content that actually or potentially infringes the copyright, trademark, patent, trade secret, intellectual property or contractual rights, or rights of privacy or publicity of any person, or instruct any person how to do so;
(4) post, disseminate, or transmit any false, fraudulent, inaccurate, or deceptive information;
(5) create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication;
(6) impersonate any person or entity, including, but not limited to, an Intuwin LLC or Intuwin.com/CherryCoke employee or agent;
(7) export, re-export, or permit downloading or transfer of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions;
(8) interfere, disrupt, or attempt to gain unauthorized access to other passwords or accounts on the site or on any other computer network;
(9) disseminate, store, or transmit viruses, Trojan horses, or any other malicious code or program;
(10) harm minors in any way;
(11) solicit personal information from anyone under thirteen (13) years of age;
(12) solicit confidential information from others, regardless of age;
(13) interfere with or disrupt the site, servers, or network connected to provide service to the site;
(14) provide instructional information about illegal or unlawful products, services, or activities;
(15) "stalk" or otherwise harass another person;
(16) intentionally or unintentionally violate any applicable local, state, national or international laws; or
(17) engage in any other activity deemed by Us, in Our sole discretion, to be objectionable or unacceptable.
(b) One or more violations of this policy may result in termination or suspension of Your access and ability to use this site. In addition, as stated in more detail in Paragraph 11, We may, in Our sole discretion, make changes to Your Content (as defined in Paragraph 10) as We deem appropriate.
(c) Our site is being hosted by Media Temple, a third party service provider, which may also have an acceptable use policy to which We are bound. This policy, if applicable, is expressly incorporated by reference herein to the extent that it applies to Your conduct while using Our site. Any violation of the Media Temple acceptable use policy, if any, by You shall constitute a violation of this section. For more information, You may view the Media Temple website at: www.MediaTemple.net. Please direct any questions that You have about its policies to Media Temple personnel only.
(d) As stated in Our Privacy Policy, in instances where We, in Our sole discretion, suspect or determine that the site is being used for any unacceptable, inappropriate, or illegal purposes, personally identifiable information relating to Your use of this site may be disclosed to other parties as We deem appropriate. Such information may also be disclosed pursuant to any authorized law enforcement investigation or other judicial process, regardless of whether it was initiated by Us or by another party.
(e) You are required to provide Us with accurate, truthful, reliable, and current information on Our registration form.
10. Infringing Scratch Cards. You are prohibited from creating any Scratch Card or other content through Our website which incorporates, copies, reproduces, displays, publishes, exhibits, or uses any image, photograph, picture or other content (collectively, ÒContentÓ) which infringes or violates the intellectual property (e.g., copyright, trademark, patent, or trade secret), privacy, publicity, or contractual rights of any other person or entity, or which We deem, in Our sole discretion, to be obscene, pornographic, or otherwise inappropriate.
11. Good Samaritan Content and Complaint Procedures Policy.
a. Policy. We have provided opportunities for You to create Scratch Cards using Your own Content. It is Our policy, however, not to allow any Content at this site which may constitute intellectual property infringement; violations of federal, state, or local law; obscene or defamatory material, or may otherwise be unacceptable or inappropriate (collectively, ÒDisputed ContentÓ). Upon learning of such Disputed Content, We will attempt, and You hereby give Us the right, to delete, edit, remove, change, or restrict access to Your Disputed Content, which, in Our sole discretion, is otherwise unacceptable or objectionable. The provisions of this section are intended to implement this policy but are not in any way intended to impose a contractual obligation upon Us to undertake, or refrain from undertaking, any particular course of conduct.
b. Complaint Procedures. If You believe that another user or other third party has used Disputed Content to Create a Scratch Card which violates this policy or the Unacceptable Use and Content Policy in Paragraph 9, You may notify Us as follows: (i) Via e-mail at Content@Intuwin.com; or (ii) via first class mail (or other nationally-recognized courier) at: Intuwin.com/CherryCoke, Intuwin LLC, 954 3rd Avenue, Suite 802, New York, NY 10022.
In order to allow Us to respond effectively, please provide Us with as much information as possible, including: (1) the nature of the right infringed or violated (including the registration numbers of any registered trademarks or patents allegedly infringed) of the Disputed Content; (2) all facts which lead You to believe that a right has been violated or infringed, if applicable; (3) the precise location, Scratch Card, or Scratch Card link where the Disputed Content is located; (4) any grounds to believe that the party or user which used or posted the Disputed Content was not authorized to do so or did not have a valid defense (including Òfair useÓ), if applicable; (5) if known, the identity of the party or user who used or posted the Disputed Content, if applicable; and (6) in the case of alleged copyright infringement claims, information sufficient to identify the work and Your claims to ownership to the Disputed Content.
c. Indemnification/Waiver of Certain Rights. By contacting Us and complaining of an alleged violation, You agree that the substance of Your complaint shall constitute a representation made under the pains and penalties of perjury pursuant to the laws of the State of New York. In addition, You agree, at Your own expense, to defend and indemnify Us and hold Us harmless against all claims which may be asserted against Us, and all losses incurred, as a result of Your complaint and/or Our response to it.
d. Waiver of Claims and Remedies. We expect all users of Our site to take responsibility for their own actions and cannot and do not assume liability for any acts of third-parties which take place at Our site. By taking advantage of the Good Samaritan procedures set forth herein, YOU WAIVE ANY AND ALL CLAIMS OR REMEDIES WHICH YOU MIGHT OTHERWISE BE ABLE TO ASSERT AGAINST US UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY, CONTRACT, AND/OR TORT LAWS) THAT ARISE OUT OF OR RELATE IN ANY WAY TO THE DISPUTED CONTENT AT THIS SITE OR OUR RESPONSE, OR FAILURE TO RESPOND, TO A COMPLAINT AS A RESULT THEREOF.
e. Investigation/Liability Limitation. You agree that We have the right, but not the obligation, to investigate any complaint received. By reserving this right, We do not undertake any responsibility in fact to investigate complaints or to remove, edit, disable, or restrict access to or the availability of Disputed Content. We will not act on complaints that We believe, in Our sole discretion, to be deficient or incomplete. If You believe that Disputed Content remains on this site which violates Your rights, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE AGAINST THE USER OR OTHER PARTY RESPONSIBLE FOR SAID CONTENT, NOT AGAINST US.
f. Digital Millennium Copyright Act Compliance. As set forth in Subsection (b), You must contact Us if You believe that a work protected by a U.S. Copyright which You own has been posted on Our site without authorization or that Our site, in some material way, contributes to its infringement. It is Our policy to terminate, in appropriate circumstances, the access rights of repeat infringers and other users who use this site in an inappropriate or objectionable manner.
12. Representations and Warranties. You (or Your parent or legal guardian if You are a minor) represent and warrant the following: (a) You are over thirteen (13) years of age; (b) You have the right, power, and authority to enter into and perform this Agreement; (c) The information that You provided when registering to use Our site is accurate, truthful, reliable, and current; (d) You will not use Our service or site for any unacceptable uses, as listed in Paragraph 9; and (e) You will not use Our website or service to violate any federal, state, and/or local law.
13. Disclaimer of Warranties. THIS SITE IS PROVIDED ÒAS ISÓ WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) THAT THE SITE, OR THE SERVICE PROVIDED BY US WILL MEET YOUR REQUIREMENTS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA, OR CONTENT OBTAINED FROM THE SITE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO YOUR USE OF THIS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE OR SERVICE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) YOUR USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION OR DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM YOU; AND (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
15. Reliance upon Limitations. The parties acknowledge that they have entered into this Agreement in reliance upon the limitations of liability and the disclaimer of warranties and damages as set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
16. Indemnification. You agree to indemnify, hold harmless, and defend Us, Our directors, employees, and agents from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement and/or any breach or threatened breach by You; (b) Your use of the site, including any data, Content, or material transmitted or received by You; (c) any unacceptable or objectionable use of the site by You; (d) any negligent or willful misconduct by You; and (e) as otherwise provided in this Agreement.
17. Privacy. Your information is collected and utilized pursuant to Our Privacy Policy, incorporated by reference herein. We do not knowingly collect information from anyone under the age of thirteen (13).
18. Integration and Conflicting Terms. This Agreement and the Privacy Policy, constitute the complete and exclusive statement and agreement between You and Us with respect to use of this site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of Our site.
This Agreement and the Privacy Policy shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of this Agreement shall control.
19. Modification and Amendment. We have the right at any time to modify or amend the terms of this Agreement. As stated above, should this Agreement be modified or amended, Our site will display these modifications or amendments. Any use of the site by You after said notification shall constitute Your acceptance of the modified or amended terms. No modification made by You shall be binding upon Us unless it is made in writing and signed by Us.
20. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, or any other causes beyond the control of either party, that party shall be excused to the extent that it is prevented, hindered, or delayed by such causes. In the event of such circumstances which hinder or delay Our performance, We will, if possible, attempt to post this information on Our site.
21. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be found to be invalid, illegal, or unenforceable in any respect, said finding shall not affect the remaining provisions, which shall be enforceable to the fullest extent permitted by law.
22. Waiver. No waiver of any term, provision or condition of this Agreement and/or the Privacy Policy, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver by Us shall be binding unless executed in writing by Us and signed by an authorized agent.
23. Governing Law, Forum, and Arbitration. This Agreement is made in, and shall be governed by, the laws of the State of New York, excluding its conflicts-of-law principles. You (or Your parent or legal guardian if You are a minor) agree that in the event of any dispute which arises between the parties relating to this Agreement which the parties are unable to resolve, said dispute shall be submitted solely and exclusively to arbitration pursuant to the commercial arbitration rules of the American Arbitration Association. Said dispute shall be submitted individually by You, and shall not be subject to any class action status. You hereby waive any and all rights to claim punitive, incidental, or consequential damages, attorneysÕ fees and costs, and/or the right to have any damages multiplied or increased. You agree that the only damages to which You will be entitled shall be Your actual damages associated with this Agreement. Said arbitration shall occur exclusively in the city and county of New York. All lawsuits, causes-of-action, disputes, or other proceedings not subject to Arbitration shall be brought exclusively in the state or federal courts located in the city and county of New York and You irrevocably submit and consent to the exercise of personal jurisdiction over You as a result thereof.
24. Remedies. In order to avoid irreparable injury to Us, in the event of any breach or threatened breach by You of the provisions of this Agreement, We shall be entitled to an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Us from pursuing any other remedies available to Us for such breach or threatened breach, including the recovery of monetary damages from You.
25. No Third Party Beneficiaries. No provision of this Agreement is intended to create, and does not create, any rights in or benefits to any third party.
26. Notice. All notices relating to the site or Your use thereof shall be deemed to be delivered when displayed on Our site. Except as may be provided elsewhere in this Agreement, all notices to Us shall be sent via first class mail or other nationally recognized courier to: Intuwin.com/CherryCoke, Intuwin LLC, 954 3rd Avenue, Suite 802, New York, NY 10022.
27. Termination. Either party may terminate this Agreement at any time without notice to the other party. Upon termination, Your access and use of the site may be discontinued and terminated.
28. Survivability. The respective rights and obligations of the parties, if any, pursuant to Sections 11 through 16, inclusive, Sections 23 and 24, and as otherwise provided elsewhere in this Agreement, shall survive any termination or expiration of this Agreement.
29. Neutral document. No provision of this Agreement or the Privacy Policy shall be interpreted or construed against Us because We were the drafter thereof and shall be interpreted in a neutral manner.
30. Headings and Order. The headings and sequential order of the sections contained in this Agreement are for convenience or reference only and shall have no substantive or procedural effects in construing the provisions of this Agreement.