Taproot Terms of Service
Last Updated: December 5, 2016
These Terms of Service set forth the terms and conditions that apply to your use of Taproot Foundation’s websites located at http://www.taprootfoundation.org and https://www.taprootplus.org/ (or successors URLs) and our related services and materials (collectively, the ” Service“) which are offered to you by Taproot Foundation (“Taproot“). Subject to your compliance with these Terms of Service, Taproot grants you permission to use the Service as set forth below.
A. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD
1. Eligibility. The Service is not intended for persons under the age of 13 or for any users suspended or removed from the Service by Taproot. By using the Service, you represent that you are at least 13 years of age and have not been previously suspended or removed from the Service. If you are older than 13 but younger than 18 years of age (“Minor Child“), you must have parental consent before registering for the Service. If you have agreed to allow your Minor Child to use the Service, you agree that you shall be solely responsible for: (a) the online conduct of such Minor Child; (b) monitoring such Minor Child’s access to and use of the Service; and (c) the consequences of any use of the Service by such Minor Child. If you are using or registering an account on the Service on behalf of a company, entity, or organization (a ” Subscribing Organization“), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms, and that you agree to be bound by these Terms on behalf of such Subscribing Organization.
2. Registered Account. In order to access some features of the Service, you will have to create an account. You represent and warrant that the information you provide to Taproot upon registration and, at all other times, will be true, accurate, current and complete. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. If you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, for restricting access to your computer and for logging off of the Service at the end of each session. You agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, unauthorized disclosure or use of your account ID or password), you shall immediately notify Taproot at firstname.lastname@example.org. YOU MAY BE LIABLE FOR THE LOSSES INCURRED BY TAPROOT OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
3. Payment. The Service may permit you to make donations. Before you pay any amounts, you will have an opportunity to review and accept the amounts that you will be charged. All amounts are in U.S. dollars and are non-refundable. You authorize Taproot or its third party payment processor to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Taproot or its third party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
B. USE OF THE SERVICE- PERMISSIONS AND RESTRICTIONS
1. Service Access. Taproot grants you permission to use the Service as set forth in these Terms, provided that and so long as (i) you use the Service solely for your personal, private, noncommercial use unless otherwise agreed to by Taproot; (ii) you do not download, reproduce, redistribute, retransmit, publish, resell, publicly display or otherwise exploit any portion of the Service in any medium without Taproot’s prior written authorization or unless expressly permitted in these Terms; (iii) you do not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. You understand that certain portions of the Service may not be accessible to all users, including but not limited to our online community. Taproot reserves the right to terminate or suspend your account, deny you permission to access the Service or deny you permission to register an account for any or no reason.
2. Ownership; Proprietary Rights. As between the parties, the Service, including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service are owned and operated by Taproot, its affiliates and/or its licensors. Except as expressly authorized by Taproot, you agree not to sell, license, distribute, copy, publicly perform or display, transmit, edit, adapt, modify, create derivative works from, or otherwise make unauthorized use of the Service. Taproot reserves all rights not expressly granted in these Terms. User shall not acquire any right, title, or interest to the Service, except for the limited rights set forth in these Terms. All trademarks, service marks, and trade names are proprietary to Taproot, its affiliates and/or its licensors and may not be exploited without the express permission of the owner of such marks or as otherwise authorized under these Terms.
C. PRIVACY; ADDITIONAL TERMS
1. Privacy. Your privacy is important to Taproot. The Service privacy policies for the Taproot Foundation website (http://www.taprootfoundation.org/about-probono/privacy) and Taproot+ service (https://www.taprootplus.org/privacy) (the ” Privacy Policies“) are hereby incorporated into these Terms by reference. Please read the Privacy Policies carefully for information relating to Taproot’s collection, use and disclosure of your personal information.
2. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features that we may post on or link to the Service (the “Additional Terms“), including end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service. For example, if you sign up to volunteer through the Service or post a volunteer project on the service, we may require you to agree to terms related to your volunteering or project, such as our Pro Bono Consultant Agreement. Unless otherwise noted, all Additional Terms are incorporated by this reference into, and made a part of, these Terms.
D. USER SUBMITTED CONTENT
1. General. The Service provides certain features which enable you and other users to submit, post, share and distribute content with other users, which may include without limitation text, drawings, graphic, audio, video, and pictorial works, or any other content submitted by you and other users through the Service (“Submitted Content” or “User Content“). You understand that all Submitted Content is the sole responsibility of the person from whom such content originated. This means that you, and not Taproot, are entirely responsible for all Submitted Content and the consequences of uploading, posting or publishing it on the Service.
2. Right to Remove or Edit User Submissions. Taproot reserves the right, in its sole discretion, to refuse to allow any Submitted Content on the Service, or to edit or remove any Submitted Content at any time with or without notice. Without limiting the generality of the preceding sentence, Taproot complies with the Digital Millennium Copyright Act, and will remove Submitted Content upon receipt of a compliant takedown notice (see the “Digital Millennium Copyright Act” section below).
3. Grant of Rights by You to Taproot. By providing Submitted Content to Taproot, you hereby grant Taproot and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, transferable, perpetual license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your Submitted Content in connection with the Service and Taproot’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant Taproot, its affiliates, and sublicensees the right to use the name that you submit in connection with such Submitted Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Submitted Content. You also hereby grant to each user of the Service a non-exclusive license to access your Submitted Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such Submitted Content as permitted by the functionality of the Service and these Terms. Except for the limited rights set forth in these Terms, each user retains all right, title, and interest in its Submitted Content.
4. Your Representations and Warranties Regarding Submitted Content. In connection with your Submitted Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Taproot to use, all patent, trademark, copyright, or other proprietary rights in and to any and all of your Submitted Content to enable inclusion and use of such Submitted Content in the manner contemplated by Taproot and these Terms and (ii) your Submitted Content, Taproot’s use of such Submitted Content pursuant to these Terms, and Taproot’s exercise of the license rights set forth under these Terms, do not and will not: (a) infringe, violate, or misappropriate any intellectual property or third party proprietary right (including but not limited to any copyright, trademark, patent, trade secret or moral right); (b) slander, defame, libel, or invade the right of privacy, publicity or any other third party right; or (c) violate any applicable law or regulation.
5. Submitted Content Disclaimer. You understand that when using the Service you may be exposed to Submitted Content and other third party content that is inaccurate, offensive, indecent or otherwise objectionable. Taproot does not endorse any Submitted Content or any opinion, recommendation or advice expressed therein. Under no circumstances will Taproot be liable in any way for or in connection with the Submitted Content, including, but not limited to, liability for any inaccuracies, errors or omissions in any Submitted Content, any intellectual property infringement with regard to any Submitted Content or for any loss or damage of any kind incurred as a result of the use of any Submitted Content. You agree that you must evaluate and bear all risks associated with the use of any Submitted Content, including any reliance on the accuracy, completeness, usefulness, legality of such content or accurate identification of the author (and/ or their affiliation with any third party).
6. Submissions. Taproot is pleased to hear from users and welcomes your comments regarding Taproot’s programs and services. However, Taproot’s longstanding company policy does not allow it to accept or to consider creative ideas, suggestions, or materials other than those it has specifically requested. We hope that you will understand that the intent of this policy is to avoid the possibility of future misunderstandings when projects developed by Taproot’s employees and agents might seem to be similar to creative works submitted by users. Accordingly, while we value your feedback, we must ask that you do not send original creative materials. If you send comments, suggestions, ideas, feedback, notes or concepts or other materials to Taproot (collectively, “Submissions“), they shall be deemed, and shall remain, the property of Taproot and shall otherwise be subject to the provisions below. You represent and warrant that you are authorized to grant all rights in your Submissions to Taproot and disclosure or offer of any Submission shall constitute an assignment to Taproot of all worldwide rights, title, and interest in all copyrights and other intellectual property rights in such Submission. Taproot may edit, copy, publish, distribute, translate and otherwise use in any medium any Submission that you forward to Taproot and will own exclusively all such rights, titles, and interest and shall not be limited in any way in its use, commercial or otherwise, of your Submission. Taproot is and shall be under no obligation to: (i) maintain any of your or any user’s Submission in confidence; (ii) to pay to you or any user any compensation for any Submission; or (iii) to respond to any of your or any other user’s Submission.
E. RULES FOR USE OF THE SERVICE
· As a condition of your use of the Service, you hereby represent and warrant that you will not use the Service for any purpose that is unlawful or prohibited by these Terms.
· Any use by you of any of the Service other than for private, non-commercial use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Service, use of the Service, access to the Service or Submitted Content obtained through the Service for any purpose other than for your personal, private, non-commercial purposes. You agree not to violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right.
· You agree not to: (i) defame, harass, abuse, threaten, stalk or defraud users of the Service; or (ii) collect, or attempt to collect, personal information about users or third parties without their consent.
· You agree not to engage in any discrimination on the basis of race, religion, creed, national origin, disability, handicap, age, sexual orientation, marital status, veteran status or any other basis prohibited by law.
· You agree not to: (i) upload, submit or send to other users of the Service any pornographic, embarrassing, hateful, abusive, threatening, obscene, vulgar, profane, indecent, racially or ethnically insulting, libelous, fraudulent or otherwise inappropriate content; or (ii) engage in disruptive activities online, including excessive use of scripts, sound waves, scrolling, etc.
· You agree not to intentionally interfere with or damage, impair or disable the operation of the Service or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
· You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or features that enforce limitations on the use of the Service.
· You agree not to attempt to gain unauthorized access to the Service, or any part of it (including the online community), other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper workings of the Service or any activities conducted through the Service.
· You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form, nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service.
· You agree that you will not use any robot, spider, scraper or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
· You agree not to utilize framing techniques to enclose any trademark, logo or other materials on the Service without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Taproot’s name or trademarks without our express written consent.
· You agree not to make unsolicited offers, advertisements, proposals or send junk mail or spam to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests and petitions for signatures.
· You agree not to: (i) solicit other users to join, become members of, or contribute money to any online service or other organization; (ii) advocate or attempt to get users to join in legal or illegal schemes; (iii) plan or participate in scams involving other users; or (iv) encourage or provide instruction about illegal activities.
· You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
· You agree not to modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
· You agree not to perform fraudulent activity, including impersonating another person or entity, or falsely claiming or otherwise misrepresenting your affiliation with another person or entity, or falsifying your age or date of birth.
· You agree not to use any material or information available through the Service in connection with any site or other use that contains or is associated with information or content prohibited by these Terms.
F. YOUR RELATIONSHIP WITH THIRD PARTIES
1. Third-Party Services and Third-Party Materials. Taproot may provide tools through the Service that enable you to import or export information, including User Content, from or to third party services, including through features that allow you to link your account on Taproot with an account on the third party service, such as LinkedIn, or through our implementation of third party buttons (“Linked Services“). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites or may provide third-party materials, media, content, software, services or applications on the Service (collectively with the Linked Services, the “Third-Party Materials”). Taproot has no control over such Third-Party Materials, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third-Party Materials. Taproot provides links or Third-Party Materials to you only as a convenience, and the inclusion of any link or Third-Party Materials on the Service does not imply our affiliation, endorsement or adoption thereof. Access and use of Third-Party Materials, including the information, materials, products, and services, is solely at your own risk. Our terms and policies do not govern your use of any site other than the Service. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third-Party Materials.
2. User Disagreements. You are solely responsible for your involvement with other users of the Service. Taproot reserves the right, but has no obligation, to monitor disagreements between you and other users. Taproot disclaims all liability related to any user disagreement. If you have a dispute with one or more users, you irrevocably and forever release Taproot (and Taproot’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
1. By Taproot. You agree that Taproot, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the Service or terminate or restrict your use of the Service, and may remove and discard all or any part of your account or any Submitted Content or any information stored, sent or received via the Service, at any time and without prior notice. You further agree that Taproot shall not be liable to you for any such termination. These remedies are in addition to any other remedies Taproot may have at law or in equity and termination, suspension or cancellation of these Terms or your access rights shall not affect such remedies. Upon termination of these Terms, all rights granted to you will automatically terminate and immediately revert to Taproot and its licensors.
2. By User. If you are dissatisfied with the Service, please let us know at email@example.com. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the Service; (ii) any term of these Terms; (iii) any policy or practice of Taproot in operating the Service; or (iv) any content or information transmitted through the Service is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account and discontinuing your use of any and all parts of the Service and providing notice of termination at firstname.lastname@example.org.
H. DIGITAL MILLENNIUM COPYRIGHT ACT
1. Notice of Infringing Material. It is Taproot’s policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). Taproot will promptly terminate without notice the accounts of users that are determined by Taproot to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had Submitted Content removed from the Service at least twice. If you are a copyright owner or an agent thereof, and believe that any Submitted Content infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Designated Copyright Agent (indicated below) with the following information in writing (see 17 U.S.C § 512(c)(3) or consult your own legal counsel to confirm these requirements):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. A description of the copyrighted work, or other intellectual property, claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service;
3. A description of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Taproot to locate the material on the Service;
4. Information reasonably sufficient to permit Taproot to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
2. Counter Notification. If you elect to send us a counter notice, to be effective it must be a written communication to our Designated Copyright Agent (indicated below) that includes the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
1. A physical or electronic signature of the subscriber;
2. 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;
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Taproot may be found, and that the subscriber will accept service of process from the person who provided notification under Section 512(c)(1)(C) or an agent of such person.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
3. Designated Copyright Agent. Taproot’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:
Assistant to the President
40 Worth St., Suite 601
New York, NY 10013
For clarity, only DMCA notices should go to Taproot’s Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Taproot customer service through email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
I. WARRANTY DISCLAIMER
1. Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM TAPROOT INCLUDES TAPROOT’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, PARTNERS, CONTRACTORS, SUPPLIERS AND SUBCONTRACTORS.
2. No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TAPROOT DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TAPROOT OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
3. “As is” and “As Available” and “With All Faults”. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, SUBMITTED CONTENT AND ANY THIRD-PARTY MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
4. Service Operation. TAPROOT DOES NOT WARRANT THAT THE SERVICE, SUBMITTED CONTENT OR THIRD-PARTY MATERIALS OFFERED ON, THROUGH OR IN CONJUNCTION WITH THE SERVICE OR ANY THIRD PARTY MATERIALS WILL BE UNINTERRUPTED, FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, OR AVAILABLE FOR USE AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
5. Accuracy. TAPROOT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE IN CONJUNCTION WITH OR THROUGH THE SERVICE OR ANY THIRD PARTY MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS OR OTHERWISE. YOU ASSUME ALL RISK OF ERRORS AND/OR OMISSIONS IN THE SERVICE, INCLUDING THE TRANSMISSION OR TRANSLATION OF INFORMATION. YOU ASSUME FULL RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE SERVICE, INCLUDING THE INFORMATION, AND FOR MAINTAINING ANY MEANS THAT YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE, AND ANY INFORMATION SENT OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES.
6. Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD OR OTHERWISE OBTAIN INFORMATION, MATERIALS OR DATA THROUGH THE SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD PARTY MATERIALS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, NECESSARY MAINTENANCE, REPAIR OR CORRECTION TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
J. LIMITATION OF LIABILITY
1. Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM TAPROOT INCLUDES TAPROOT’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, PARTNERS, CONTRACTORS, SUPPLIERS AND SUBCONTRACTORS.
2. Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, TORTS OR STRICT LIABILITY, SHALL TAPROOT BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO: (I) THESE TERMS; (II) YOUR USE OR A DELAY OR INABILITY TO USE THE SERVICE OR ANY THIRD PARTY MATERIALS; (III) ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ADVERTISED IN OR OBTAINED THROUGH THE SERVICE; (IV) TAPROOT’S REMOVAL OF ANY MATERIALS OR RECORDS SUBMITTED OR POSTED ON THE SERVICE; (V) THE SERVICE; OR (VI) ANY OTHER INTERACTIONS WITH TAPROOT, EVEN IF TAPROOT OR A TAPROOT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TAPROOT SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SERVICE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TAPROOT SHALL NOT BE LIABLE FOR YOUR INTERACTIONS WITH ANYONE ELSE USING THE SERVICE, AND TAPROOT SHALL NOT BE LIABLE FOR DAMAGES ARISING FROM YOUR PARTICIPATION IN ACTIVITIES LISTED ON THE SERVICE.
YOU AGREE THAT IF THE FOREGOING IS UNENFORCEABLE, OR ANY LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF TAPROOT TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THEE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TAPROOT FOR ACCESS TO AND THE USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $1000.
3. Third Party Materials. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON OR THROUGH ANY THIRD PARTY MATERIALS OR OTHERWISE BY THIRD PARTIES OTHER THAN TAPROOT AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD PARTY MATERIALS.
4. Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
5. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT TAPROOT HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TAPROOT AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TAPROOT. YOU ACKNOWLEDGE AND AGREE THAT TAPROOT WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TAPROOT, TAPROOT’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, PARTNERS, CONTRACTORS, SUPPLIERS AND SUBCONTRACTORS FROM ANY AND ALL CLAIMS, ACTIONS, SUITS, PROCEEDINGS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR SUBMITTED CONTENT, INCLUDING TAPROOT’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN OR OTHERWISE WITH RESPECT TO YOUR SUBMITTED CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY SUBMITTED CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; (VI) ANY MISREPRESENTATION MADE BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICE; AND (VII) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY TAPROOT. TAPROOT RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF TAPROOT. TAPROOT WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
Taproot does not control and does not have any obligation to monitor: (i) Submitted Content; (ii) any content made available by other persons for any purpose; or (iii) the use of the Service by its users. You acknowledge and agree that Taproot reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time, Taproot chooses, in its sole discretion, to monitor the Submitted Content, Taproot nonetheless assumes: (i) no responsibility or liability for the Submitted Content or any loss or damage of any kind incurred as a result of the use of such content; (ii) no obligation to modify or remove any inappropriate Submitted Content; and (iii) no responsibility for the conduct of the user submitting any such Submitted Content. During monitoring, information may be examined, recorded, copied and used for authorized purposes in accordance with our Privacy Policies.
M. Dispute Resolution and Arbitration
1. Generally. In the interest of resolving disputes between you and Taproot in the most expedient and cost effective manner, you and Taproot agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TAPROOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding anything to the contrary, you and Taproot both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
2. Arbitrator. Any arbitration between you and Taproot will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Taproot.
3. Notice and Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Taproot’s address for Notice is: Taproot Foundation, 1700 Broadway, Suite 300, Oakland, CA 94612. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Taproot may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Taproot must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
4. Fees. If you commence arbitration in accordance with these Terms, Taproot will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Taproot for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
5. No Class Actions. YOU AND TAPROOT AGREE THAT EACH 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and Taproot agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
6. Modifications to Arbitration Provisions. If Taproot makes any future change to this arbitration provision (other than a change to Taproot’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Taproot’s address for Notice, in which case your account with Taproot will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
7. Enforceability. If sub-section M.5 above is found to be unenforceable or if the entirety of this Section M is found to be unenforceable, then the entirety of this Section M will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section N will govern any action arising out of or related to these Terms.
8. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policies. Please read our Privacy Policies to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
1. Modification. Taproot reserves the right, at our sole discretion and at any time without notice, to change, modify, add or remove portions of the Terms or to modify, add or discontinue any aspect, content or feature of the Service (including but not limited to the media, web communities, products or services available therein). Taproot may, in its sole discretion, restrict the time of availability of the Service, restrict the availability or scope of the Service for certain platforms and/or restrict the amount of use permitted. The content, products, or services on the Service may be out of date, and Taproot makes no commitment to update these materials on the Service. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified terms in order to continue to use the Service. Material modifications are effective upon the earlier of (i) your acceptance of the modified Terms or (ii) your continued use of the Service with actual knowledge of such modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
2. Notice. Taproot may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Service. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless Taproot is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Taproot with notices only by mail to its address as provided below.
3. Choice of Law; Forum. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. Without limiting Section M, to the extent any dispute under this agreement is adjudicated in a court of law or equity arising out of or relating to these Terms or the Service, such suit shall be filed only in the state or federal courts in and for San Francisco County, California. You hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
4. Export Control. Unless otherwise specified, the materials on the Service are presented solely to provide information regarding and to promote Taproot’s services and other products available in the United States, its territories, possessions and protectorates. The Service is controlled and operated by Taproot from its offices within the state of California, United States of America. Taproot makes no representation that materials on the Service are appropriate or available for use outside the United States. Those who choose to access the Service from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent that local laws are applicable. Software from the Service is further subject to United States export controls. No software from the Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
5. Severability. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
6. Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, without the express written consent of Taproot but may be assigned by Taproot without restriction. Any assignment attempt in violation of these Terms shall be null and void.
7. Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Taproot as a result of these Terms or use of the Service. You further acknowledge that by transferring Submitted Content or other content to Taproot, no confidential, fiduciary, contractually implied or other relationship is created between you and Taproot other than pursuant to these Terms.
8. Survival. Sections A- L will survive any termination of these Terms or your account whether by you or Taproot.
9. Waiver. No waiver of any provision or any right granted hereunder shall be effective unless set forth in a written instrument signed by the waiving party. No waiver by either party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default.
10. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
11. Entire Agreement. This is the entire agreement between you and Taproot relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Taproot as set forth in these Terms.
12. Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13. Disclosures. The services hereunder are offered by Taproot, located at:
1700 Broadway, Suite 300
Oakland, CA 94612
14. Notice to California Residents. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.