Effective January 17, 2017
Your access to and use of certain Services may require you to accept additional terms and conditions applicable to such Services, including any future modifications (collectively, “Additional Terms”) in addition to this Agreement, and may require you to download software or Content (as defined below). The Additional Terms are made a part of this Agreement by this reference. In the event of a conflict, between any such Additional Terms and this Agreement, such Additional Terms will prevail over this Agreement with respect to your use of that specific Service.
Except as to those aspects of the site and apps directed to children, including the kid’s club and Jack and Skye’s Diary, all other content, products and Services are limited to users aged 13 years and above.
Please note that the “arbitration agreement” section below contains provisions that require (I) with limited exceptions, all disputes arising between you and Tuk-Tuk-Media under this agreement to be resolved in binding arbitration, and not in court, and (ii) you and Tuk-Tuk-Media waive the right to bring or participate in a class action in connection with such disputes. Please click here to review the arbitration agreement. By using the site and accepting this agreement, you agree to be bound by the arbitration agreement. Please read it carefully.
Tuk-Tuk-Media furnishes the Services (as defined below) for your personal enjoyment and entertainment. By using any Service (whether or not you have an account or subscription) or by clicking a box that states that you accept and agree to this Agreement, you signify your agreement to be bound by this Agreement, including any future modifications, and any Additional Terms and to abide by all applicable laws, rules and regulations (“Applicable Law”). Please read through this Agreement carefully. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you may not use the Services and must discontinue use of the Services immediately. Tuk-Tuk-Media may modify this Agreement at any time, and each such modification will be effective upon posting on or to the Service. All material modifications will apply prospectively only. Your continued use of the Services following any modification constitutes your acceptance of and agreement to be bound by this Agreement as so modified. It is therefore important that you review this Agreement regularly. Tuk-Tuk-Media may also use third-party service providers, such as vendors, contractors, agents or sponsors, to operate, develop or help Tuk-Tuk-Media manage and provide the Services.
Tuk-Tuk-Media Account Registration and Security
Some Services require you to create an account (including setting up a Tuk-Tuk-Media username and password) to participate in or to secure additional Services, such as viewing and commenting on Tuk-Tuk-Media Content (defined below), purchasing Site Products, creating an Site profile and signing up for specific Tuk-Tuk-Media newsletters. To create an account and interact with participating Services click on the Sign In/Join link on the Service webpage and create a profile.
All registration information you submit directly to us or through a Third-Party Service (defined below) to create an account must be accurate and must be kept updated by you by visiting our customer portal at https://www.comicalsense.com/wp-login.php. Your failure to do so will constitute a breach of the Agreement, which may result in immediate termination of your account. You may not (i) select or use as a username a name of another person with the intent to impersonate that person; or (ii) use as a username a name subject to any rights of another person without appropriate authorization. Tuk-Tuk-Media reserves the right to refuse registration of, or cancel, a username, in its sole discretion. It is your responsibility to notify us of any changes in such information, including, but not limited to your contact information. You are responsible for maintaining the confidentiality of all your passwords and are responsible for all use of your account. It is therefore critical that you do not share your account information with anyone. You may be held liable for losses incurred by Tuk-Tuk-Media, Tuk-Tuk-Media Affiliates (defined below) or any other Tuk-Tuk-Media user or visitor in the event someone else uses your account as a result of your failure to keep your account information secure and confidential and you agree to indemnify Tuk-Tuk-Media and all Tuk-Tuk-Media Affiliates from any third-party claims arising from such actions. You agree not to use the account, username, email address or password of another member or subscriber at any time and not to allow any other person to use your account. You agree to notify Tuk-Tuk-Media immediately if you suspect any unauthorized use of, or access to, your account or password. Tuk-Tuk-Media shall retain the right to change your username, but no obligation, for any reason, including, without limitation, if the username you have selected violates this Agreement. If Tuk-Tuk-Media makes available a manner by which you are able to upload a picture to your profile, Tuk-Tuk-Media shall also retain the right, but no obligation, to review any profile pictures provided by you.
The Site is intended solely for your personal and non-commercial use. Tuk-Tuk-Media may change, suspend or discontinue the Site (or any feature thereof) at any time. Tuk-Tuk-Media may also impose limits on certain features and services offered on the Site or restrict your access to parts or all of the Site without notice or liability. You acknowledge that from time to time the Site may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Tuk-Tuk-Media may undertake from time to time; or (iii) causes beyond the control of Tuk-Tuk-Media or which are not reasonably foreseeable by Tuk-Tuk-Media.
Unless terminated by Tuk-Tuk-Media in its sole discretion, this Agreement remains in full force and effect while you use the Services. You may terminate your account at any time, for any reason, in the following ways email@example.com and/or 9020 North Capital of Texas Highway. Ste 1-200, Austin, TX 78759.
Tuk-Tuk-Media may terminate your account, any subscription (both free and paid) and/or access to all (or any portion of) the Services at any time, for any or no reason, with or without prior notice or any explanation, and shall have no liability to you for such termination. Furthermore, even after your account subscription and/or access to the Services is terminated by you or Tuk-Tuk-Media, this Agreement will remain in full force and effect with respect to your past and future use of the Services. If we terminate your user account, subscription and/or access to the Services (or any portion of the Services) you may not create a new account, purchase a new subscription or try to access the Services without Tuk-Tuk-Media’s prior written approval. You agree that your account is non-transferable. Any rights to your account and/or Services terminate upon your death.
You acknowledge that Tuk-Tuk-Media reserves the right to charge a fee for any portion of the Services. Tuk-Tuk-Media will provide you with advance notice of any such fees, including any change in the amount of such fees, and a way to cancel your account and/or subscription in the event you do not wish to pay the modified fee. If you continue to use the Services after the applicable fee has been imposed or increased, you are expressly agreeing to the subscription fee or increase thereto and you will be responsible for paying such fee for the balance of your subscription service. You will not be entitled to a refund of any unused portion of such fees or other payments if Tuk-Tuk-Media suspends or terminates your account, and/or access to an Site (or any portion of the Site), due to your breach of this Agreement or violation of Applicable Law, as determined by Tuk-Tuk-Media, in its sole discretion.
Purchasing Tuk-Tuk-Media Site Products
If you purchase certain subscription based Site Products, your subscription will be automatically renewed and the credit or debit card you provided to the Processor for such Site Product will be charged, unless you cancel the subscription prior to the automatic renewal date of the subscription. The renewal charge for your subscription shall be the same as the original purchase price, unless you are otherwise notified in advance. You acknowledge and agree that the authorization to charge your credit card for the subscription shall automatically transfer to any successors or assigns of Tuk-Tuk-Media or the Processor, for a substantially similar subscription. Some subscription options include a free trial period. You are allowed only one free trial period. Subsequent subscriptions or upgrades do not qualify for additional free trials.
Tuk-Tuk-Media makes no warranty, and to the fullest extent provided by law, accepts no liability for any loss or damages whatsoever, relating to, or in connection with, your placement of an order for a Site Product with the Processor. Tuk-Tuk-Media provides no refunds for, makes no warranty for, and to the fullest extent provided by law, accepts no liability, regarding purchases you make on or through any Service. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. You acknowledge and agree that in the event the Processor experiences a data breach that affects any of your information, Tuk-Tuk-Media will in no way be responsible or liable to you for any such data breach.
If you have any questions regarding your purchases or transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your information, you must contact the Processor.
Limited Content License
The Services contain information, text, files, images, video, sounds, musical works, works of authorship, materials, applications, software, product names, company names, trade names, logos, designs, and any other materials or content (collectively, “Content”) of Tuk-Tuk-Media and Tuk-Tuk-Media Affiliates and their licensors and assignors (“Tuk-Tuk-Media Content”), as well as materials and Content provided by users (“User Content”) or other third-parties. Tuk-Tuk-Media Content contained in the Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and Tuk-Tuk-Media, its licensors, or its assignors, own and retain all rights in the Tuk-Tuk-Media Content and Services. Tuk-Tuk-Media hereby grants you a limited, revocable, nonsublicensable, nontransferable license, to access and display or perform the Tuk-Tuk-Media Content (excluding any software code) solely for your personal, non-commercial use, in connection with using the Services. The Services may also contain User Content. Except as provided in this Agreement or as explicitly allowed in the Additional Terms on the applicable Service, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available or otherwise use any Content contained in or through the Services.
Except as explicitly and expressly permitted by Tuk-Tuk-Media or by the limited license set forth above, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the Tuk-Tuk-Media Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, you may not, either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notice marked on the Tuk-Tuk-Media Content contained in the Services or any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with the Tuk-Tuk-Media Content, including geo-filtering mechanisms. Except as necessary in order to make reference to Tuk-Tuk-Media or Services in a purely descriptive capacity, you are expressly prohibited from using any Tuk-Tuk-Media Content in any manner.
You may not, without the Tuk-Tuk-Media’s written permission, “mirror” any Tuk-Tuk-Media Contents contained on the Site or any other server. You may not use the Site for any purpose that is unlawful or prohibited by the Agreement. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site, or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site through hacking, password mining or any other means. Tuk-Tuk-Media reserves the right, in its sole discretion, to terminate your access to the Site, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
Restrictions on Use of the Tuk-Tuk-Media Services
Tuk-Tuk-Media reserves the right to remove any and all Content in its sole discretion. You understand that you are responsible for all User Content that you post, upload, transmit, email or otherwise make available on, through or in connection with the Services. Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content. Accordingly, please choose carefully the information that you post on, through or in connection with the Services. You understand that Tuk-Tuk-Media does not control the User Content posted by users via the Services and, as such, you understand you may be exposed to offensive, inaccurate or otherwise objectionable User Content. Tuk-Tuk-Media assumes no responsibility or liability for any User Content. If you become aware of any misuse of the Services, please report this immediately to firstname.lastname@example.org.
Tuk-Tuk-Media assumes no responsibility for monitoring the Services for inappropriate Content or conduct. If at any time, Tuk-Tuk-Media chooses in its sole discretion to monitor the Services, Tuk-Tuk-Media nonetheless assumes no responsibility for Content other than Tuk-Tuk-Media Content, assumes no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user or visitor.
You agree not to use the Services to:
- Post, upload or otherwise transmit or link to content that is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; invasive of another’s privacy, publicity, contract or other rights; tortious; false or misleading; defamatory; libelous; hateful; or discriminatory;
- Violate the rights of others including patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights;
- Harass or harm another person;
- Exploit or endanger a minor;
- Impersonate or attempt to impersonate any person or entity;
- Introduce or engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising the Services;
- Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to the Services, including Tuk-Tuk-Media’s servers, networks or accounts;
- Cover, remove, disable, block or obscure advertisements or other portions of the Services;
- Delete or revise any information provided by or pertaining to any other user of the Services;
- Use technology or any automated system such as scripts, spiders, offline readers, or bots in order to collect or disseminate usernames, passwords, email addresses or other data from the Services, or to circumvent or modify any security technology or software that is part of the Services;
- Send or cause to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind through the Services. If you do so, you acknowledge you will have caused substantial harm to Tuk-Tuk-Media, but that the amount of harm would be extremely difficult to measure. As a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay Tuk-Tuk-Media $50 for each actual or intended recipient of such communication;
- Solicit, collect or request any personal information for commercial or unlawful purposes;
- Post, upload or otherwise transmit an image or video of another person without that person’s consent;
- Engage in commercial activity (including, but not limited to, advertisements or solicitations of, business; sales; contests; sweepstakes; creating, recreating, distributing or advertising an index of any significant portion of the Tuk-Tuk-Media Content; or building a business using the Tuk-Tuk-Media Content) without Tuk-Tuk-Media’s prior written consent; using technology or other means to access, index, frame, or link to the Services (including the Content) that is not authorized by Tuk-Tuk-Media (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 Tuk-Tuk-Media Content);
- Accessing Services (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 Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content;
- Use the Services to advertise or promote competing services;
- Use the Services in a manner inconsistent with any and all Applicable Law;
- Attempt, facilitate or encourage others to do any of the foregoing.
Tuk-Tuk-Media reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by Tuk-Tuk-Media, or for any other reason in Tuk-Tuk-Media’s sole discretion and without notice to you. You acknowledge that Tuk-Tuk-Media reserves the right to investigate and take appropriate legal action against anyone who, in Tuk-Tuk-Media’s sole discretion, violates this Agreement, including but not limited to, terminating their account and/or subscription and/or reporting such User Content, conduct, or activity to law enforcement authorities.
You acknowledge, consent and agree that Tuk-Tuk-Media may access, preserve or disclose information you provide to or through the Services or that we have collected about you, including registration information and User Content, when Tuk-Tuk-Media has a good faith belief that such access, preservation or disclosure is necessary in order to: (i) protect, enforce, or defend the legal rights, privacy, safety, or property of Tuk-Tuk-Media, our parents, subsidiaries or affiliates (“Tuk-Tuk-Media Affiliates”), or their employees, agents and contractors (including enforcement of this Agreement or our other agreements); (ii) protect the safety, privacy, and security of users of the Services or members of the public, including in urgent circumstances; (iii) protect against fraud or for risk management purposes; (iv) comply with Applicable Law or legal process; or (v) respond to requests from public and government authorities. If Tuk-Tuk-Media sells all or part of its business or makes a sale or transfer of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, Tuk-Tuk-Media may transfer your information to the party or parties involved in the transaction as part of that transaction.
Tuk-Tuk-Media reserves the right to limit the storage capacity of User Content. You assume full responsibility for maintaining backup copies of your User Content, and Tuk-Tuk-Media assumes no responsibility for any loss of your User Content due to it being removed by Tuk-Tuk-Media or for any other reason.
User Content on Message Boards and Forums
Tuk-Tuk-Media may offer users the ability to post messages on message boards, letters, stories, photos and/or forums (collectively, “Forums”), which may be open to the public generally, to all members of Services or to a select group of Service members. You acknowledge that all User Content posted by you on Forums is User Content, and by posting on Forums you agree to comply with the rules and restrictions on User Content set forth above and any other rules specifically applicable to such Forums. Tuk-Tuk-Media reserves the right, but disclaims any obligation or responsibility, to prevent you from posting User Content to any Forum and to restrict or remove your User Content from a Forum or refuse to include your User Content in a Forum for any reason at any time, in Tuk-Tuk-Media’s sole discretion and without notice to you. We ask you not to disclose any sensitive information (e.g., social security numbers, health or criminal background) on or through the Services, including the Forums or otherwise.
Your Proprietary Rights in and License to your User Content
Tuk-Tuk-Media does not claim any ownership rights (including copyright) in the User Content that you post, upload, email, transmit, or otherwise make available (collectively, “Transmit”) on, through or in connection with the Services, except with respect to your unsolicited submissions, as described under “Unsolicited Submissions” below; provided, however, that User Content shall not include any Tuk-Tuk-Media Content or content owned by an Tuk-Tuk-Media Affiliate. By posting or transmitting any User Content on, through or in connection with the Services, you hereby grant to Tuk-Tuk-Media and our Tuk-Tuk-Media Affiliates, licensees, assignees, and authorized users, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable and transferable (in whole or in part) right (including any moral rights) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, broadcast and distribute such User Content, including your name, voice, likeness and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, Tuk-Tuk-Media is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including Services. Tuk-Tuk-Media’s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint Tuk-Tuk-Media as your agent with full authority to execute any document or take any action, Tuk-Tuk-Media may consider appropriate in order to confirm the rights granted by you to Tuk-Tuk-Media in this Agreement.
You represent and warrant that: (i) you own the User Content Transmitted by you on, through or in connection with the Services and/or Third-Party Services, or otherwise have the right to grant the license set forth in this section, and (ii) the Transmission of User Content by you on, through or in connection with the Services and/or Third-Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content Transmitted by you on or through the Services or Third-Party Services. If you delete your User Content from any Service, Tuk-Tuk-Media’s license to such User Content will end after a reasonable period of time necessary for the deletion to take full effect. However, the User Content may be retained in Tuk-Tuk-Media’s back-up copies of the applicable Service, which are not publicly available. Furthermore, to the extent that Tuk-Tuk-Media made use of your User Content before you deleted it, Tuk-Tuk-Media will retain the right to make such pre-existing uses even after your User Content is deleted. You acknowledge that (i) deletion of your User Content from Services will not result in, and Tuk-Tuk-Media assumes no responsibility for, the deletion of such User Content by any third-parties who were provided with or had access to such User Content prior to your deleting it from Services, and (ii) termination of your account or your use of the Services will not result in the immediate or automatic deletion of your User Content consistent with this Agreement.
Removal of Material that Infringes Copyrights
Tuk-Tuk-Media respects the intellectual property of others and requires that our users do the same. Tuk-Tuk-Media has a policy that provides for the termination in appropriate circumstances of users and account holders of Services who are repeat infringers. Tuk-Tuk-Media also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above.
If you believe that any materials residing on or linked to from Services infringes your copyright, you must send a written notification of claimed infringement that contains substantially all of the following information to the Tuk-Tuk-Media Copyright Agent: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit Tuk-Tuk-Media to locate the material on the Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit Tuk-Tuk-Media to contact you, such as an address, telephone number, and an email address; (d) 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 Applicable Law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and (f) your physical or electronic signature. Tuk-Tuk-Media’s Copyright Agent for notification of a claimed infringement can be reached as follows: Copyright Agent, Tuk-Tuk-Media Kataryna DeLisle; Facsimile: (202) 912-3239; Phone: (202) 912-6623. Please be sure to send the notification to the attention of the Site on which your claimed infringement occurred. If you wish to notify the Tuk-Tuk-Media Copyright Agent electronically, please submit an email to email@example.com.
If you posted materials to an Service that was removed due to notice by a copyright owner.
If you posted materials to the Services that Tuk-Tuk-Media removed due to a notice of a claimed infringement from a copyright owner, Tuk-Tuk-Media will take reasonable steps promptly to notify you that the material has been removed or disabled. This notice may be by means of a general notice on Services or by written or electronic communication to such address(es) you have provided to Tuk-Tuk-Media, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) 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; (ii) a statement by you, under penalty of perjury, that you have 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; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Tuk-Tuk-Media is located, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
Third-Party Links and Services
Sweepstakes and/ or Contests
Sweepstakes, contests, games and other promotions run on the Services by Tuk-Tuk-Media may require you to provide some information such as full name, zip code, e-mail address, and phone number, in order to participate. Tuk-Tuk-Media may use a reputable third-party, selected by, but not affiliated with Tuk-Tuk-Media, to manage and administer some or all of its sweepstakes, contests, games and other promotions. This third-party may have access to some or all of the information that you provided in order to participate in the sweepstakes, contests, games or other promotion. Our sweepstakes and/or contests are targeted to individuals 18 years of age and older, and individuals under 18 years of age are not eligible to participate unless specifically permitted by the official rules of the related sweepstakes or contest. Tuk-Tuk-Media requires proof of age in order for an individual to collect any prizes awarded.
You are solely responsible for your interactions with other Tuk-Tuk-Media users and visitors, providers of Third-Party Services, Processors or any other parties with whom you interact on, through or in connection with the Services. Tuk-Tuk-Media reserves the right, but has no obligation, to become involved in any way with these disputes.
THE TUK-TUK-MEDIA SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND TUK-TUK-MEDIA DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE TUK-TUK-MEDIA SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TUK-TUK-MEDIA EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TUK-TUK-MEDIA MAKES NO WARRANTY THAT YOUR USE OF THE TUK-TUK-MEDIA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE TUK-TUK-MEDIA SERVICES WILL BE CORRECTED, THAT THE TUK-TUK-MEDIA SERVICES OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE TUK-TUK-MEDIA SERVICES OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL TUK-TUK-MEDIA OR OUR TUK-TUK-MEDIA AFFILIATES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE TUK-TUK-MEDIA SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE TUK-TUK-MEDIA SERVICES, ATTENDANCE AT AN TUK-TUK-MEDIA EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE TUK-TUK-MEDIA SERVICES, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE TUK-TUK-MEDIA SERVICES, OR THE CONDUCT OF ANY USERS OF THE TUK-TUK-MEDIA SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE TUK-TUK-MEDIA SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE TUK-TUK-MEDIA SERVICES.
USER CONTENT, THIRD-PARTY ADVERTISEMENTS AND THIRD-PARTY SERVICES DO NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF TUK-TUK-MEDIA OR OF OUR TUK-TUK-MEDIA AFFILIATES.
LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TUK-TUK-MEDIA NOR OUR TUK-TUK-MEDIA AFFILIATES WILL BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE TUK-TUK-MEDIA SERVICES, EVEN IF TUK-TUK-MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TUK-TUK-MEDIA AND OUR TUK-TUK-MEDIA AFFILIATES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO TUK-TUK-MEDIA, FOR THE TUK-TUK-MEDIA SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF TUK-TUK-MEDIA’S ACTS OR OMISSIONS OR YOUR USE OF TUK-TUK-MEDIA SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE TUK-TUK-MEDIA SERVICES.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TUK-TUK-MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
United States Jurisdiction
Tuk-Tuk-Media provides the Services in the United States of America. Tuk-Tuk-Media does not represent that the Tuk-Tuk-Media Content, Services are appropriate (or, in some cases, available) for use in other locations. If you use the Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the Services.
Not all of the Services are available worldwide or nationwide, and Tuk-Tuk-Media makes no representation that you will be able to obtain any Services in any particular jurisdiction, either within or outside of the United States.
U.S. Export Controls
Software available in connection with the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this Agreement.
(3) Any arbitration between you and Tuk-Tuk-Media will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and Tuk-Tuk-Media cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of Tuk-Tuk-Media and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by the terms of this Arbitration Agreement.
(4) If either you or Tuk-Tuk-Media wants to arbitrate a Dispute, you or Tuk-Tuk-Media must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Service to which the Notice relates, and the relief requested. Your Notice to the Tuk-Tuk-Media must be sent by mail to Arbitration Notice of Dispute, c/o 9020 North Capital of Texas Highway, Ste 1-200, Austin, TX 78759. The Tuk-Tuk-Media will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the Tuk-Tuk-Media at the address listed above to which you sent your Notice of Dispute.
(5) You and the Tuk-Tuk-Media acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND TUK-TUK-MEDIA MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) the Tuk-Tuk-Media will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 8 below.
(6) JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against Tuk-Tuk-Media, you and the Tuk-Tuk-Media acknowledge and agree to abide by the following:
- If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), Tuk-Tuk-Media will pay the filing fee on your behalf or reimburse your payment of it.
- If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but Tuk-Tuk-Media will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
- Tuk-Tuk-Media and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. Tuk-Tuk-Media will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.
- Tuk-Tuk-Media and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
(7) Regardless of how the arbitration proceeds, each of you and Tuk-Tuk-Media shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(8) Each of you and Tuk-Tuk-Media may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if Tuk-Tuk-Media failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than Tuk-Tuk-Media’s highest settlement offer, then Tuk-Tuk-Media will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If Tuk-Tuk-Media wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
(9) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order Tuk-Tuk-Media to pay any monies to or take any actions with respect to persons other than you, unless Tuk-Tuk-Media explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless Tuk-Tuk-Media expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(10) You and Tuk-Tuk-Media agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
(11) With the exception of subpart (a) in paragraph (5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against Tuk-Tuk-Media must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
This Agreement will be governed by, and construed in accordance with, the laws of the State of Texas, without regard to its conflict of law provisions. Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and Tuk-Tuk-Media agree to submit to the exclusive jurisdiction of the courts located in Austin, Texas to resolve any Dispute arising out of this Agreement or the Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE Tuk-Tuk-Media SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold Tuk-Tuk-Media, its Tuk-Tuk-Media Affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys’ fees, made by any third-party due to or arising out of or in connection with your use of the Services, your breach of this Agreement, your violation of any rights of another or any User Content that you post or otherwise submit on, through or in connection with the Services.
Tuk-Tuk-Media does not knowingly accept, via the Services or otherwise, unsolicited submissions including, without limitation, submissions by you of blog ideas, articles, scripts, story lines, fan fiction, characters, drawings, information, suggestions, proposals, ideas or concepts. Tuk-Tuk-Media requests that you do not make any unsolicited submissions. Any similarity between an unsolicited submission and any elements in any Tuk-Tuk-Media or Tuk-Tuk-Media Affiliate creative work, including without limitation, a film, series, story, title or concept would be purely coincidental. If you do send any submissions to Tuk-Tuk-Media via the Services that are unsolicited (including but not limited to any Forum), however, you agree that (i) your unsolicited submissions are not being made in confidence or trust and that by making such submissions, no contractual or fiduciary relationship is created between you and Tuk-Tuk-Media; (ii) any such unsolicited submissions and copyright becomes the property of and will be owned by Tuk-Tuk-Media (and are not User Content licensed by you to Tuk-Tuk-Media under “Your Proprietary Rights in and License to Your User Content”) and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as Tuk-Tuk-Media sees fit; (iii) you are not entitled to any compensation, credit or notice whatsoever in connection with such unsolicited submissions; and (iv) by sending an unsolicited submission, you waive the right to make any claim against Tuk-Tuk-Media or Tuk-Tuk-Media Affiliates relating to any unsolicited submissions by you, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
The failure of Tuk-Tuk-Media to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices the Tuk-Tuk-Media may be required by Applicable Law to send to you will be effective upon Tuk-Tuk-Media’s sending an e-mail message to the e-mail address you have on file with Tuk-Tuk-Media or publishing such notices on the informational page(s) of Services.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Tuk-Tuk-Media as a result of this Agreement or your use of the Services. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Nothing contained in this Agreement limits Tuk-Tuk-Media’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by us in connection with such use.
If you would like to contact any Site with any questions regarding this Agreement, please contact us at firstname.lastname@example.org.