This agreement (hereinafter, the “Agreement”) between National Kale Day (hereinafter, “NKD”, “us” or “we”) and you sets forth the terms and conditions which govern your use of any of the NKD or NKD sponsored websites (hereinafter, the “Sites”) and/or the services (hereinafter, the “Services”) thereon which are provided by NKD.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SITES AND/OR SERVICES. BY ACCESSING OR USING THE SITES AND/OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITES OR SERVICES AND SHOULD IMMEDIATELY CEASE SUCH USE. NKD MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA EMAIL. YOUR USE OF ANY OF THE SITES AND/OR SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND/OR THE SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
1. Limited License & Use of Services
NKD grants to you a limited personal, non-exclusive and non-transferable right and license to access the Sites and use the Services thereon. Unless otherwise specified in writing, the Services are for your personal and non-commercial use.
NKD’s Services shall contain, without limitation, online services and products, including articles, blogs, newsletters, tools, email services, forums, communities, social networking platforms and various other message communication applications.
2. Prohibited Activities
In connection with your use of the Sites and/or the Services, you acknowledge and agree that you will not:
a. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Sites or the Services;
b. access the Sites or Services by any means other than through the standard industry-accepted or NKD-provided interfaces;
c. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another’s right of privacy or publicity;
d. impersonate any person or entity, including without limitation, a NKD official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
e. post or transmit any material that contains a virus or corrupted data;
f. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
g. use of any Site or Service’s communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
h. post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
i. violate any applicable local, state, national or international law;
j. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
k. delete or revise any material posted by any other person or entity;
l. manipulate or otherwise display the Sites and/or the Services by using framing or similar navigational technology;
m. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any NKD product or Service if you are not expressly authorized by such party to do so; or
n. use the Sites and/or the Services for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site or the Services in any manner that could damage, disable, overburden or impair NKD’s servers or networks, or interfere with any other user’s use and enjoyment of the Sites and/or the Services. Furthermore, you may not attempt to gain unauthorized access to any of the Sites, Services, accounts, computer systems or networks connected to NKD through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Sites or the Services.
NKD has no obligation whatsoever to monitor any of the content or postings in the membership areas or on other public forums on the Sites. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.
Materials posted and/or uploaded to the various public forums may be subject to size and usage limitations. You are responsible for adhering to such limitations.
4. Third Party Content
Whenever content contained on any of the Sites or Services is supplied by third parties and users, NKD is a distributor (and not a publisher) of such content and has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, are those of the respective authors or distributors, and not NKD. Neither NKD nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content. Furthermore, NKD neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on any of the Sites or Services by anyone other than an authorized NKD representative while acting in his/her official capacity.
5. Contests and Games
NKD occasionally provides contests and games on its Sites. The rules, regulations and procedures governing any of the foregoing shall be accessible through a hypertext link prominently displayed on the web page where the contest or game may be located. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures. Please remember to read the rules carefully before participating.
6. Accounts, Passwords and Security
If any of the Sites or Services require you to open an account, you must complete the registration process by providing NKD with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to NKD which is untrue, inaccurate, not current or incomplete, NKD reserves the right to terminate this Agreement and your continued access and use of the Sites and/or the Services.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify NKD immediately of any unauthorized use of your account or any other breach of security. NKD will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by NKD or another party due to someone else using your account or password.
7. Disclaimer Regarding Links
The links on any of the Sites and/or Services will let you leave the particular Site or Service you are accessing in order to access a linked site (the “Linked Sites”). NKD provides these links as a convenience, but we neither control nor endorse these Linked Sites, nor has NKD reviewed or approved the content which appears on the Linked Sites. NKD is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any Linked Sites. You acknowledge and agree that NKD shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Sites.
8. Dealings with Third Parties
Your participation, correspondence or business dealings with any third party found on or through our Sites and Services, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that NKD shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
9. Proprietary Rights
You acknowledge and agree that the Sites and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and are the sole property of NKD or its licensors. You further acknowledge and agree that any content contained in advertisements or information presented to you through advertisers concerning NKD or otherwise is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, ” Submission Materials”) or by posting such Submission Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to NKD shall be fully paid-up and royalty free. In addition, under no circumstances shall NKD have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of all or any portion of NKD’s business through a merger, sale or transfer of all or substantially all of the assets of NKD, nor shall the sale of advertising on any of the Sites give rise to any obligation to pay a fee to Subscribers.
None of the Submission Materials disclosed or posted via support groups, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on NKD’s part and we shall not be liable for any use or disclosure of any such Submission Materials.
10. Copyright Policy
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by NKD infringe your copyright, you, or your agent may send to NKD a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon NKD actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to NKD a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details.
NKD’s Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows:
E-mail for notice:
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
NKD’s policy with respect to the collection and use of your personally identifiable information is set forth at http://nationalkaleday.org/privacy-policy. By accepting these Terms of Service, you acknowledge this policy.
12. Disclaimer of Warranties
THE SITES AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITES AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NKD AND ITS AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT AND EXPRESSLY DINKDLAIM THAT: (i) YOUR USE OF THE SITES AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, or (iv) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SERVICES AND SITES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND THE SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES AND SERVICES ARE ENTIRELY AT YOUR OWN RISK.
13. Limitation of Liability
NEITHER NKD NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITES OR THE SERVICES; (ii) ANY CONTENT CONTAINED ON THE SITES AND/OR THE SERVICES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITES AND/OR THE SERVICES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITES; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITES OR THE SERVICES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITES OR THE SERVICES, or (vii) ANY OTHER MATTER RELATING TO THE SITES AND/OR THE SERVICES. IN NO EVENT SHALL NKD’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY OF THE SERVICES OR THE SITES.
You agree to indemnify, defend, and hold NKD and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including reasonable attorneys’ fees and disbursements) which arise directly or indirectly out of or from (i) your breach of this Agreement, (ii) any allegation that any materials that you submit to NKD or post on any forums (e.g., support groups, chat rooms) infringe or otherwise violate the copyright, trade secret, trademark or other intellectual property rights of a third party, and (iii) your access or use of the Sites and/or the Services. This Section 17 shall survive in the event this Agreement is terminated for any reason.
15. Jurisdictional Issues
NKD makes no representation or warranty that the content and materials on the Sites and/or the Services are appropriate or available for use in locations outside the United States. Those who choose to access the Sites or use the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. NKD reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Sites and/or the Services to any person, geographic area, or jurisdiction we so desire, and to limit the quantities of any such Service or products that we provide.
This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that NKD, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites or Services, and remove and discard any content within the Sites, at any time and for any reason. You agree that any actions taken under this Section 19 may be effective without prior notice to you. In the event of termination, however, those Sections in this Agreement which provide for continuing obligations on your part shall survive indefinitely.
27. General Information
This Agreement constitutes the entire agreement and understanding between you and NKD and governs your use of the Sites and the Services, superseding any prior agreements between you and NKD. This Agreement and the relationship between you and NKD shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. You and NKD irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of Hudson, in the State of New Jersey, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. The failure of NKD to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed herefrom and shall not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. However, we may assign this Agreement to any third party whom we choose without your consent. No waiver by NKD of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.