MISFIT MEDIA LLC
Effective as of January 1, 2013
About the Website
The Website allows you to build your website and connect to third party services in a bundled hosting, domain and web tools package in order to create, broadcast and connect to content by you and others on the network.
Registration and Use of the Website
You must be at least 13 years old and a resident of the United States to register for and use the Website.
If you register as a Website user, in order to access the Website and to receive messages from interchang.es or MISFIT MEDIA LLC you will be asked to create a personalized account which includes a unique username and a password. You agree to notify us immediately of any unauthorized use of your password and/or account. We will not be responsible for any liabilities, losses, or damages to you or any third party arising out of the unauthorized use of your member name, password and/or account.
You agree that you will not under any circumstances in connection with your use of the Website:
● post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable, hateful, and offensive;
● use the Website for any unlawful purpose or for the promotion of illegal activities;
● engage in conduct that would reasonably be viewed as bullying, harassing, abusing, or harming another person or group, or attempt to do so;
● use another user’s account without permission or give another access to your account;
● provide false or inaccurate information when registering an account;
● interfere or attempt to interfere with the proper functioning of the Website;
● make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
● bypass any robot exclusion headers or other measures we take to restrict access to the Website or use any software, technology, or device to scrape, spider, or crawl the Website or harvest or manipulate data; or
● publish or link to malicious content intended to damage or disrupt another user’s browser or computer.
Posting, Content, and Conduct Rules
When you create your personalized network account, you may build a website, create a profile, post, comment, interact with other sites on the network, and otherwise contribute to Website content (all such contributions are “User Content”). You are solely responsible for the User Content that you post, upload, link to or otherwise make available via the Website. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. We do, however, reserve the right to remove any User Content from the Website at our discretion.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Website, you agree as follows:
● You are solely responsible for your account and the activity that occurs through your account;
● You will not post information that is malicious, false or inaccurate;
● You will not submit content that is copyrighted or subject to third party proprietary rights, including without limitation trademark, privacy, publicity, trade secret, or patent, unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and
● You hereby affirm we have the right to determine whether any of your User Content submissions are appropriate and/or comply with these Terms of Service, and to remove any or all of your submissions and terminate your account with or without prior notice in our sole discretion.
You understand and agree that any liability, loss, or damage that occurs to you or any third party as a result of the use of any User Content that you make available or access through your use of the Website is solely your responsibility. We are not responsible for any third party display or misuse of your User Content. We do not, and cannot, pre-screen or monitor all User Content. However, at our discretion, we may monitor and/or record user interactions with the Website directly or using technology.
Website Content Disclaimer
You understand that interchang.es and MISFIT MEDIA LLC coordinators, employees and volunteers may retain individual user accounts, and that User Content or other materials posted through those accounts are not posted on behalf of MISFIT MEDIA LLC. The only accounts managed by/on behalf of MISFIT MEDIA LLC are those with the following usernames: interchanges, misfitmedia.
Opinions, advice, statements, offers, or other information or content made available through the Website are by users/parties other than MISFIT MEDIA LLC those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.
MISFIT MEDIA LLC does not guarantee the accuracy, completeness, or usefulness of any information on the Website and does not adopt or endorse, or take responsibility for, the accuracy or reliability of any opinion, advice, or statement made by users/parties other than MISFIT MEDIA LLC. MISFIT MEDIA LLC takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Website. Under no circumstances will MISFIT MEDIA LLC be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Website, or transmitted to users. Under no circumstances will MISFIT MEDIA LLC be responsible for any loss or damage resulting from anyone’s reliance on third party plugins and features not build by MISFIT MEDIA LLC.
Links and Materials Outside the Website
Intellectual Property and License Grant
By posting any User Content on or via the Website, you expressly grant to MISFIT MEDIA LLC a non-exclusive, royalty-free, sublicensable, transferable, perpetual, irrevocable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, publicly perform/display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, and in any form, media or technology now known or hereafter devised, for use in connection with content aggregation on or with the Website by interchang.es and MISFIT MEDIA LLC. By posting any User Content on or via the Website you represent and warrant that you have the right and authority to grant the foregoing rights in such User Content.
MISFIT MEDIA LLC Intellectual Property
You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Website, including applicable copyrights, trademarks, patents, and other proprietary rights. Other product and company names that are mentioned on the Website may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you under this Agreement.
Copyright and the DMCA
We respect the intellectual property rights of others and requests that Website users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, MISFIT MEDIA LLC has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Website who are repeat infringers. We may terminate access for participants or users who are found repeatedly to provide or post third party content without proper rights and permissions.
DMCA Notice. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Website infringe upon your copyrights, you may notify us of this infringement pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to our designated copyright agent at Misfit Media, 27 Arion Place, Brooklyn, NY 11206:
1. The date of your notification;
2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
3. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
4. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
5. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
6. A statement that you have 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
7. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DMCA Counter-Notice. If your User Content has been removed from the Website pursuant to a third party DMCA notice and you believe that User Content is not infringing, or that you have authorization to post and use that content (from the copyright owner, the copyright owner’s agent, or by law), you may send a counter-notice containing the following information to our copyright agent at the address set forth above:
1. Your physical or electronic signature;
2. A description of the content that has been removed and the location at which the content appeared before it was removed;
3. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
4. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our copyright agent, we may send a copy of such counter-notice to the original complaining party informing such person that we may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may (in MISFIT MEDIA LLC’s discretion) be reinstated on the Website 10 to 14 business days or more after receipt of the counter-notice.
No Email Notice to MISFIT MEDIA LLC
Communications made by email or through the interchang.es Website’s email and messaging system will not constitute legal notice to MISFIT MEDIA LLC or any of its officers, coordinators, volunteers, agents, or representatives in any situation where notice to MISFIT MEDIA LLC is required by contract, law, rule, or regulation.
User Consent to Electronic Communications
We may also use your email address, to send you other messages, including information about the Company and special offers. You may opt out of such email by changing your account settings or sending an email to Nicole@misfit-media.com or mail.
Opting out may prevent you from receiving messages regarding the Company or special offers.
THE WEBSITE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MISFIT MEDIA LLC EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT, OR OTHER MATERIAL OBTAINED ON OR THROUGH THE WEBSITE.
LIMITATION OF DAMAGES; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MISFIT MEDIA LLC, ITS AFFILIATES, DIRECTORS, COORDINATORS OR VOLUNTEERS, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, ARISING IN CONNECTION WITH (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE WEBSITE; (C) THE WEBSITE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE WEBSITE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH MISFIT MEDIA LLC OR ANY OTHER USER OF THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT MISFIT MEDIA LLC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
In addition to and without limiting the foregoing, you release us (and our officers, directors, agents, subsidiaries, coordinators, volunteers, and employees) from all claims, demands, and damages (actual and consequential) arising out of or in any way connected with any dispute you have with any other Website user(s).
If you are a California resident, you waive California Civil Code §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.”
No changes to these Terms (other than as set forth in this paragraph) or waiver of MISFIT MEDIA LLC’s rights hereunder will be valid or effective except when set forth in a written agreement bearing the physical signature of an officer or director of MISFIT MEDIA LLC. No actual or purported waiver or modification of these Terms by MISFIT MEDIA LLC via telephonic or email communications will be valid.
If any part of Terms is held invalid or unenforceable, that portion of Terms will be construed consistent with applicable law and all remaining portions will remain in full force and effect. No failure on the part of MISFIT MEDIA LLC to enforce any provision of this Agreement will be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You agree that any cause of action related to or arising out of your relationship with MISFIT MEDIA LLC must commence within ONE (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.