Terms of Service Agreement
Effective Date: June 6, 2017
PLEASE READ THIS TERMS AND CONDITIONS AGREEMENT (“AGREEMENT“) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER“) AND SPOONDIVAS.COM (“SPOONDIVAS,” “COMPANY,” “WE,” OR “US“).
By accessing or using any website with an authorized link to this Agreement (“Website“), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively with the Website, the “Services“), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms“) which are incorporated by reference into this Agreement. Some of the specialized features and tools accessible through our Services are provided by third-party companies pursuant to their own separate Terms of Service (“Third-Party Terms”) that differ from ours. By using such third-party features and tools, you agree that your relationships with the third-party service providers will be governed by the applicable Third-Party Terms.
SPOONDIVAS reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. Registration. When registering an account for the Services (“Account“), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data“) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify SPOONDIVAS immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same SPOONDIVAS service at any given time. SPOONDIVAS reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of SPOONDIVAS.
2. User Content.
2.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services, or otherwise provided to SPOONDIVAS, whether online or offline and whether or not solicited by SPOONDIVAS (“User Content“). SPOONDIVAS has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, SPOONDIVAS reserves the right in its sole discretion to pre-screen, refuse, or remove any content. SPOONDIVAS shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
2.2 Ownership of Your Content. SPOONDIVAS does not claim ownership of any User Content you make available on the Services (“Your Content“). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant SPOONDIVAS the license set forth in Section 2.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
2.3 License to Your Content. Subject to any applicable Account settings that you select, you grant SPOONDIVAS, and anyone authorized by SPOONDIVAS, an irrevocable, nonexclusive, perpetual, worldwide, royalty-free right and license to use, copy, display, publicly perform, transmit, modify, publish, distribute, make derivative works of, sublicense, and otherwise commercially and non-commercially exploit and use Your Content (in whole or in part) in any manner or medium now existing or hereafter developed (including print and electronic storage) and for any purpose. The foregoing grant includes the right to exploit any proprietary rights in Your Content, including, but not limited to, under copyright, trademark, trade secret, patent or other intellectual property laws that exist in any relevant jurisdiction. In connection with the exercise of these rights, you grant SPOONDIVAS, and anyone authorized by SPOONDIVAS, the right to identify you as the author of Your Content by name, email address or screen name, as we deem appropriate. You will not receive any compensation of any kind for the use of Your Content. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
2.4 Ratings and Reviews. Ratings and reviews posted by Users on our Services are User Content that is not endorsed by SPOONDIVAS and does not represent the views of SPOONDIVAS. SPOONDIVAS does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable business, product, or service; (ii) you will not provide a rating or review for any business, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
2.5 Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without SPOONDIVAS’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of SPOONDIVAS.
3. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to SPOONDIVAS (“Feedback“) is at your own risk and that SPOONDIVAS has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SPOONDIVAS the right to use any Feedback in any way at any time without any additional approval or compensation.
4. Ownership of and License to Use SPOONDIVAS Properties.
4.1 Use of the Services. Except with respect to User Content, SPOONDIVAS and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, SPOONDIVAS grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. SPOONDIVAS, its suppliers and service providers reserve all rights not granted in this Agreement.
4.2 Trademarks. SPOONDIVAS’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of SPOONDIVAS and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
5. Restrictions on Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Services (including images, text, page layout or form) of SPOONDIVAS; (c) you shall not use any metatags or other “hidden text” using SPOONDIVAS’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by SPOONDIVAS pursuant to this Agreement.
6. Third-Party Links. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links“). When you click on such a link, we will not warn you that you have left the Services. SPOONDIVAS does not control and is not responsible for Third-Party Links. SPOONDIVAS provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
7. Indemnification. You agree to indemnify and hold SPOONDIVAS, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “SPOONDIVAS Parties“) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. SPOONDIVAS reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SPOONDIVAS in asserting any available defenses. This provision does not require you to indemnify any of the SPOONDIVAS Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
8. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SPOONDIVAS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES AND PRODUCTS. SPOONDIVAS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES OR ANY PRODUCTS WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT SPOONDIVAS AND ITS USERS ARE NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. OUR PRODUCTS AND SERVICES ARE NO SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. Limitation of Liability.
9.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, THE SPOONDIVAS PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SPOONDIVAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 User Content and Settings. THE SPOONDIVAS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPOONDIVAS AND YOU.
9.4 Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
10. Procedure for Making Claims of Copyright Infringement. If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
11. Termination. At its sole discretion, SPOONDIVAS may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, SPOONDIVAS reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to SPOONDIVAS for Products purchased will remain due.
12. International Users. The Services are controlled and offered by SPOONDIVAS from its facilities in the United States of America. SPOONDIVAS makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. General Provisions.
13.1 Electronic Communications. The communications between you and SPOONDIVAS use electronic means, whether you visit the Services or send SPOONDIVAS e-mails, or whether SPOONDIVAS posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SPOONDIVAS in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that SPOONDIVAS provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
13.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without SPOONDIVAS’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.3 Force Majeure. SPOONDIVAS shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us using the contact information available on the Services. We will do our best to address your concerns.
13.3 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
13.4 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.