DUNKDOG.COM WEB SITE TERMS OF USE
Introduction; Your Agreement to these Terms of Use.
Welcome to the DunkDog.com web site, www.DunkDog.com (the “DunkDog Site”). The following Terms of Use for the DunkDog Site is a legal contract between you, an individual user or a single entity (collectively or individually, “Users”), and Slam Dunk Investments, LLC (d/b/a “DunkDog.com”) (“DunkDog”) regarding your use of the DunkDog Site. Together, Users and DunkDog are referred to herein individually as “Party” or collectively as the “Parties”. When using the DunkDog Site, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the “Guidelines”). The term “Guidelines” does not include DunkDog’s privacy policy or its children’s privacy policy. All Guidelines are hereby incorporated by reference into the Terms.
BEFORE USING THE DUNKDOG SITE, PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE DUNKDOG SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DUNKDOG SITE.
IN THE EVENT THAT YOU ARE A PARENT OF A CHILD UNDER THE AGE OF MAJORITY, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS, AND YOU FURTHER AGREE THAT YOU AND YOUR CHILD SHALL BE BOUND BY THE TERMS. PARENTS SHALL BE HELD RESPONSIBLE FOR THEIR CHILD’S VIOLATION OF ANY OF THESE TERMS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DUNKDOG SITE, YOUR CHILD’S USE OF THE DUNKDOG SITE AND DELETE YOUR CHILD’S ACCOUNT AND DISCONTINUE HIS/HER USE OF THE DUNKDOG SITE.
1. Eligibility. In order to use the DunkDog Site, you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms; or, if you are under the age of majority in your jurisdiction, you must obtain the express consent of your parent or legal guardian agreeing that you and your parent shall be bound by the terms, conditions, obligation, affirmations, representations and warranties set forth in these Terms. You represent that you meet the eligibility requirements in this Section. If you are a parent or legal guardian of a child under the age of 13, you have provided express consent to the use of the DunkDog Site by your child after consulting our DunkDog.com Children’s Online Privacy Policy and the DunkDog.com Privacy Policy, and you and your child shall be bound by these Terms. If you are using or opening an account on the DunkDog Site on behalf of a company, entity, or organization (collectively “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 agree to be bound by these Terms on behalf of such Subscribing Organization.
2. Modification of the Terms. DunkDog reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you. All changes shall be effective immediately. In the event of a material change, we will notify you via e-mail according to your account preferences. Please check these Terms periodically for changes. Your continued use of the DunkDog Site after the posting of changes constitutes your binding acceptance of such changes. The most current version of these Terms, which supersedes all previous versions, can be reviewed by clicking on the “Terms of Use” hyperlink located at the bottom of every page on the DunkDog Site.
3. DunkDog Site Access. DunkDog grants you permission to use the DunkDog Site as set forth in these Terms, provided that and for so long as (i) you use the DunkDog Site solely for your personal, private, noncommercial use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the DunkDog Site in any medium without DunkDog’s prior written authorization; (iii) you do not alter or modify any part of the DunkDog Site other than as may be reasonably necessary to use the DunkDog Site 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. The DunkDog Site is controlled and offered by DunkDog from its facilities in the United States of America. DunkDog make no representations that the DunkDog Site is appropriate or available for use in other locations. If you are accessing or using the DunkDog Site from other jurisdictions, you do so at your own risk and you are responsible for compliance with local law.
4. Ownership; Proprietary Rights. As between the Parties, the DunkDog Site including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the DunkDog Site that are provided by DunkDog (“DunkDog Materials”) are owned and operated by DunkDog. DunkDog Materials do not include User Submissions (defined below) or any Non-DunkDog Content (as defined below). Except as expressly authorized by DunkDog, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the DunkDog Site or the DunkDog Materials. DunkDog reserves all rights not expressly granted in these Terms. User shall not acquire any right, title, or interest to the DunkDog Materials, except for the limited rights set forth in these Terms.
5. User Submissions.
(a) General. The DunkDog Site may now or in the future permit the submission and posting or linking of media, text, audio and video recordings, photos, commentary or any other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are displayed for entertainment and informational purposes only and are not controlled by DunkDog. DunkDog makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, DunkDog does not guarantee any confidentiality with respect to any User Submissions.
(b) Grant of Rights. By submitting User Submissions to DunkDog, you hereby grant DunkDog and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the DunkDog Site and DunkDog’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the DunkDog Site (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant DunkDog and its affiliates and sublicensees the right to use the name that you submit in connection with such User Submission 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 User Submissions. You also hereby grant to each user of the DunkDog Site a non-exclusive license to access your User Submissions through the DunkDog Site, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the DunkDog Site and these Terms.
(c) Your Representations and Warranties Regarding User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize DunkDog to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by DunkDog and these Terms, and to grant the rights and license set forth in this Section, and (ii) your User Submissions, DunkDog’s use of such User Submissions pursuant to these Terms, and DunkDog’s exercise of the license rights set forth in this Section, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
(d) Prohibited Uses of User Submissions. In connection with your User Submissions, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the DunkDog Site: (i) any falsehoods or misrepresentations that could damage DunkDog or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner.
6. Non-DunkDog Content Disclaimer. You understand that when using the DunkDog Site you will be exposed to User Submissions and other third party content (together, the “Non-DunkDog Content”) from a variety of sources, and that you may be exposed to Non-DunkDog Content that is inaccurate, offensive, indecent, or otherwise objectionable. DunkDog does not endorse any Non-DunkDog Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will DunkDog be liable in any way for or in connection with the Non-DunkDog Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-DunkDog Content, any intellectual property infringement with regard to any Non-DunkDog Content, or for any loss or damage of any kind incurred as a result of the use of any Non-DunkDog Content posted, emailed or otherwise displayed or transmitted through the DunkDog Site.
7. Non-Monitoring of Users and Non-DunkDog Content. You understand that all Non-DunkDog Content is the sole responsibility of the User who submitted such Non-DunkDog Content. This means that you, and not DunkDog, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the DunkDog Site. DunkDog does not control the Non-DunkDog Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Non-DunkDog Content for any purpose. If at any time, DunkDog chooses, in its sole discretion, to monitor the Non-DunkDog Content, DunkDog nonetheless assumes no responsibility for the Non-DunkDog Content, no obligation to modify or remove any inappropriate Non-DunkDog Content, and no responsibility for the conduct of the user submitting any such Non-DunkDog Content. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Non-DunkDog Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Submission or other Non-DunkDog Content.
8. Removal of Non-DunkDog Content. DunkDog and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-DunkDog Content that is available on the DunkDog Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
9. Prohibited Uses of the DunkDog Site.
(a) As a condition of your use of the DunkDog Site, you hereby represent and warrant that you will not use the DunkDog Site for any purpose that is unlawful or prohibited (including without limitation, the prohibitions in this Section) by these Terms.
(b) Any use by you of any of the DunkDog Materials and DunkDog Site other than as permitted by these Terms is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit, any portion of the DunkDog Site, use of the DunkDog Site, access to the DunkDog Site, or Non-DunkDog Content obtained through the DunkDog Site, for any purpose other than for your personal, private, non-commercial purposes.
(c) You agree not to use the DunkDog Site if you do not meet the eligibility requirements described in Section 1 above.
(d) You agree not to defame, harass, abuse, threaten, stalk or defraud users of the DunkDog Site, or collect, or attempt to collect, personal information about users or third parties without their consent.
(e) You agree not to intentionally interfere with or damage, impair or disable the operation of the DunkDog Site or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the DunkDog Site, features that prevent or restrict the use or copying of any part of the DunkDog Site, or features that enforce limitations on the use of the DunkDog Site.
(g) You agree not to attempt to gain unauthorized access to the DunkDog Site, or any part of it, other accounts, computer systems or networks connected to the DunkDog Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the DunkDog Site or any activities conducted through the DunkDog Site.
(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the DunkDog Site. You agree neither to modify the DunkDog Site in any manner or form, nor to use modified versions of the DunkDog Site, including (without limitation) for the purpose of obtaining unauthorized access to the DunkDog Site.
(i) You agree not to utilize framing techniques to enclose any trademark, logo, or other DunkDog Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing DunkDog’s name or trademarks without our express written consent.
(j) You agree not to deep-link to the DunkDog Site and will promptly remove any links that DunkDog finds objectionable in its sole discretion. You agree not to use any DunkDog logos, graphics, or trademarks as part of the link without our express written consent.
(k) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the DunkDog Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(l) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the DunkDog Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(m) You agree not to modify, adapt, translate, or create derivative works based upon the DunkDog Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(n) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(o) You agree that you will not use any robot, spider, scraper, or other automated means to access the DunkDog Site 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 DunkDog Site.
10. Account Information. In order to access some features of the DunkDog Site, you will have to create an account. You represent and warrant that the information you provide to DunkDog 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. You acknowledge, consent and agree that DunkDog may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) provide certain customized features of the DunkDog Site to you, if any, or respond if you contact DunkDog for any reason; or (e) protect the rights, property or personal safety of DunkDog, the users and the public.
11. Password. 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 and for restricting access to your computer, and 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, theft or unauthorized disclosure or use of your account ID or password), you shall immediately notify DunkDog. YOU MAY BE LIABLE FOR THE LOSSES INCURRED BY DUNKDOG OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
12. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the DunkDog Site are solely between you and such advertiser. YOU AGREE THAT DUNKDOG WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE DUNKDOG SITE.
13. Links and Third Party Websites. DunkDog or third parties may provide links on the DunkDog Site to other sites including the content therein (“Reference Sites”). DunkDog has no control over such Reference Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or content linked to by the DunkDog Site. DunkDog provides links to you only as a convenience, and the inclusion of any link on the DunkDog Site does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the DunkDog Site. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
14. Availability of Service. DunkDog may make changes to or discontinue any of the media, web communities, products, or services available within the DunkDog Site at any time, and without notice. The media, products, or services on the DunkDog Site may be out of date, and DunkDog makes no commitment to update these materials on the DunkDog Site.
15. User Disagreements. You are solely responsible for your involvement with other users of the DunkDog Site. DunkDog reserves the right, but has no obligation, to monitor disagreements between you and other users. DUNKDOG DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
16. Terms of Use Violations; Termination.
(a) DunkDog. You agree that DunkDog, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the DunkDog Site or your use of the DunkDog Site, and remove and discard all or any part of your account or any User Submission, at any time. You agree that your access to the DunkDog Site or any account you may have or portion thereof may be terminated without prior notice, and you agree that DunkDog shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies DunkDog may have at law or in equity.
(b) User. If you are dissatisfied with the DunkDog Site, please let us know at info@dunkdog.com. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the DunkDog Site, (ii) any term of these Terms, (iii) any policy or practice of DunkDog in operating the DunkDog Site, or (iv) any content or information transmitted through the DunkDog Site, 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 DunkDog Site and providing notice of termination at info@dunkdog.com.
17. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS DUNKDOG, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE DUNKDOG SITE; (II) YOUR USER SUBMISSIONS, INCLUDING DUNKDOG’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER SUBMISSIONS; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER SUBMISSION INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY DUNKDOG. DUNKDOG 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 DUNKDOG. DUNKDOG WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
18. Disclaimers; No Warranties.
(a) Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 18, THE TERM DUNKDOG INCLUDES DUNKDOG’S OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, AFFILIATES, AND SUBCONTRACTORS.
(b) No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DUNKDOG DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DUNKDOG OR THROUGH THE DUNKDOG SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(c) “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE DUNKDOG SITE IS AT YOUR SOLE RISK. THE DUNKDOG SITE, USER SUBMISSIONS, NON-DUNKDOG CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DUNKDOG SITE 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.
(d) Website Operation and Non-DunkDog Content. DUNKDOG DOES NOT WARRANT THAT THE DUNKDOG MATERIALS, USER SUBMISSIONS, NON-DUNKDOG CONTENT, DUNKDOG SITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE DUNKDOG SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(e) Accuracy. DUNKDOG DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DUNKDOG SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(f) Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE DUNKDOG SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
19. Limitation of Liability and Damages.
(a) Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL DUNKDOG OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE DUNKDOG MATERIALS AND USER SUBMISSIONS ON THE DUNKDOG SITE OR ANY REFERENCE SITES, THE DUNKDOG SITE ITSELF, OR ANY OTHER INTERACTIONS WITH DUNKDOG, EVEN IF DUNKDOG OR A DUNKDOG AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation of Damages. IN NO EVENT SHALL DUNKDOG OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE DUNKDOG SITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSER OF (i) THE FEES PAID BY YOU TO DUNKDOG UNDER THESE TERMS, OR (ii) ONE HUNDRED DOLLARS.
(c) Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN DUNKDOG AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE DUNKDOG SITE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
20. Limitations by Applicable Law; Basis of the Bargain.
(a) 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.
(b) Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT DUNKDOG 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 DUNKDOG, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DUNKDOG. YOU ACKNOWLEDGE AND AGREE THAT DUNKDOG WOULD NOT BE ABLE TO PROVIDE THE DUNKDOG SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
21. Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-DunkDog Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the DunkDog Site are covered by a single notification, a representative list of such works from the DunkDog Site;
(iii) Identification 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 DunkDog to locate the material;
(iv) Information reasonably sufficient to permit DunkDog 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;
(v) 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
(vi) 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.
DunkDog’s designated Copyright Agent to receive notifications of claimed infringement is:
Team DunkDog
Slam Dunk Investments, LLC
1525 Airline Drive
Metairie, LA 70001
email: info@dunkdog.com
22. Miscellaneous.
(a) Notice. DunkDog may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the DunkDog Site. 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 DunkDog is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide DunkDog with notices only by mail to the address indicated in subsection (l) below.
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Louisiana, without giving effect to any principles of conflicts of law.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the DunkDog Site shall be filed only in the state or federal courts in and for Orleans Parish, Louisiana and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
(d) Waiver. A provision of these Terms may be waived only by a written instrument executed by the Party entitled to the benefit of such provision. The failure of DunkDog to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(e) 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.
(f) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DunkDog without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(g) Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and DunkDog as a result of these Terms or use of the DunkDog Site. You further acknowledge that by submitting User Submissions or other Non-DunkDog Content, no confidential, fiduciary, contractually implied or other relationship is created between you and DunkDog other than pursuant to these Terms.
(h) Survival. Sections 4, 5, 15, 17, 18, 19, 20, 21 and 22 will survive any termination of these Terms or your account whether by you or DunkDog.
(i) 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.
(j) Entire Agreement. This is the entire agreement between you and DunkDog 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 or Guidelines made by DunkDog as set forth in Section 2 above.
(k) Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE DUNKDOG SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(l) Disclosures. The services hereunder are offered by DunkDog, located at 1525 Airline Drive, Metairie, Lousiana 70001, email: info@dunkdog.com, telephone: 504-415-0281. Notice to California Residents: Under California Law, California residents have the right to request in writing from businesses with whom they have an established business relationship, (1) a list of the categories of information, such as name, address, e-mail address, and the type of services provided to the customer, that a business has disclosed to third parties (including affiliates that are separate legal entities) during the immediately preceding calendar year for the third parties’ direct marketing purposes, and (2) the names and addresses of all such third parties. To request the above information, please write to us at the address provided above with a reference to California Disclosure Information.
Last Updated: February 25, 2013
4828-1896-2702, v. 2.1