This website terms-of-service agreement is entered into between you and AV Registry LLC and Takedown Piracy Inc. (collectively,
“Company,” “ClipSentry,” “we,” or
“us”). The following agreement, together with any documents it expressly incorporates by reference (collectively, this
“agreement”), governs your access to and use of
www.clipsentry.com, including any content, functionality, and services offered on or through
www.clipsentry.com (
“Website”), whether as a guest or a registered user.
Please read this agreement carefully before you start to use the Website.
By using the Website or by clicking to accept or agree to this agreement when this option is made available to you, you accept and agree to be bound and abide by this agreement and our Privacy Policy, found at clipsentry.com/privacy, incorporated by reference. If you do not want to agree to this agreement or the Privacy Policy, you must not access or use the Website.
This Website is offered and available to users who are 18-years old or older. By using this Website, you state that you are of legal age to form a binding contract with ClipSentry and meet all the foregoing eligibility requirements. If you do not meet all these requirements, you must not access or use the Website.
This agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1.
Nature of Website. ClipSentry is an anti-piracy service for independent artists provided by Takedown Piracy and AV Registry. The Website allows artists, cam performers, content creators, and independent producers who shoot and produce their own content access to anti-piracy and DMCA removal services. ClipSentry and our agents will seek, find, and remove infringements on behalf of the independent producer from Tubes, Search Engines, File Lockers, Torrents, Blogs, Forums, and Social Media using our sophisticated techniques and technology. Also included is the capability to upload and digitally fingerprint content, so that ClipSentry can find and detect pirated content using its automated visual content identification (
“Content ID”). If ClipSentry determines that your content is being pirated, ClipSentry will work to get it removed by issuing DMCA Takedown requests on your behalf through Takedown Piracy. Access and registration to the Website require you to buy a subscription.
2.
Changes to the Agreement. We may revise and update this agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website from then on. But changes will not apply retroactively to ongoing disputes or disputes arising out of (or relating to) events happening before the posted changes. Your continued use of the Website after the posting of the revised agreement means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
3.
Accessing the Website. We may withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users. You are responsible for both (a) making all arrangements necessary for you to have access to the Website; and (b) ensuring that all persons who access the Website through your Internet connection are aware of this agreement and comply with it.
4.
Your Account and Account Security
4.1
Registration. To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is accurate. You acknowledge that all information you provide to register with this Website or otherwise, including, through the use of any interactive features on the Website, is governed by our Privacy Policy
clipsentry.com/privacy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
4.2
Responsibility for Account. If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat that information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and you will not provide any other person with access to this Website or parts of it using your username, password, or other security information. You must promptly notify us of any unauthorized access to or use of your username or password or any other breach of security. You also must ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this agreement.
4.3
Liability for Account Misuse. We 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. You could be held liable for losses incurred by us or another party due to someone else using your account or password.
4.4
Account Security. We care about the integrity and security of your personal information. But we cannot guarantee that unauthorized third parties will never be able to defeat the Website’s security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your personal information at your own risk.
4.5
Communication Preferences. By registering for an account, you consent to receive electronic communications from us relating to your account. These communications may involve sending emails to your email address provided during registration or posting communications on the Website and will include notices about your account (e.g., change in password, confirmation emails, and other transactional information) and are part of your relationship with us. You acknowledge that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal communication requirements, including that these communications be in writing. We recommend that you keep copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receive certain other communications from us, including newsletters about new features and content, exclusive offers, promotional announcements, and customer surveys via email or other methods. If you no longer want to receive certain non-transaction communications, please review our Privacy Policy
clipsentry.com/privacy on opting out of marketing communications.
5.
Intellectual Property Rights
5.1
Ownership. The Website and its entire contents, features, and functionality, including all visual interfaces, graphics, information, software (including source code and object code), text, displays, images, video, and audio, and the design, selection, and arrangement of them (collectively,
“Materials”), are owned by the Company, its licensors, or other providers of those Materials. United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws protect the Website and the Materials found on it.
5.2
License Grant. ClipSentry hereby grants you a personal, worldwide, royalty-free, non-assignable, non-exclusive license to use the software provided to you as part of the Website for your personal, non-commercial use only. You must not reproduce, distribute, resell, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Materials on the Website, except as follows:
(a)Your computer may temporarily store copies of those Materials in RAM incidental to your accessing and viewing those materials.
(b)You may store files that are automatically cached by your Web browser for display enhancement purposes.
(c)You may print or download one copy of a reasonable number of pages of the Website for your own personal, noncommercial use and not for further reproduction, publication, or distribution.
(d)If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, on condition that you agree to be bound by our end user license agreement for those applications.
(e)If we provide social media features with certain content, you may take those actions as are enabled by those features.
5.3
License Restrictions
(a)You must not:
(i)Modify copies of any Materials from the Website.
(ii)Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
(iii)Delete or alter any copyright, trademark, or other proprietary rights notices from copies of Materials from the Website.
(b)You must not access or use for any commercial purposes any part of the Website or any services or Materials available through the Website.
(c)If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of this agreement, your right to use the Website will stop immediately, and you must, at our option, return or destroy any copies of the Materials you have made. No interest in or to the Website or any content on the Website is transferred to you, and ClipSentry reserves all rights not expressly granted. Any use of the Website not expressly permitted by this agreement is a breach of this agreement and may violate copyright, trademark, and other laws.
5.4
Trademarks. The Company name, the term CLIPSENTRY, the Company logo, and all related names, logos, product and service names, designs, and slogans, as well as the look and feel of the Website, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of the Company or its affiliates or licensors. You must not use those marks without the Company’s prior written permission. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
6.
Prohibited Uses
6.1
You must use the Website only for lawful purposes and according to this agreement. You must not use the Website:
(a)In any way that violates any applicable federal, state, national, provincial, local, or international law or regulation (including any laws regarding the export of data or software to and from the US or other countries).
(b)To exploit, harm, or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
(c)To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards stated in this agreement.
(d)To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
(e)To impersonate or attempt to impersonate ClipSentry, a ClipSentry employee, another user, or any other person or entity (including by using email addresses or screen names associated with any of the foregoing).
(f)To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm ClipSentry or users of the Website, or expose them to liability.
6.2
Additionally, you must not:
(a)Use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website, including their ability to engage in real-time activities through the Website.
(b)Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the Materials on the Website.
(c)Use any manual process to monitor or copy any of the Materials on the Website or for any other unauthorized purpose without our prior written consent.
(d)Use any device, software, or routine that interferes with the proper working of the Website.
(e)Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(f)Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
(g)Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
(h)Otherwise attempt to interfere with the proper working of the Website.
7.
User Uploads
7.1In General. The Website allows users to upload their videos to the Website (“User Uploads”) for ClipSentry to digitally fingerprint. All User Uploads must comply with the Content Standards stated in section 9.
7.2License to ClipSentry. By submitting any User Upload to the Website, you hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns, a worldwide, non-exclusive, royalty-free license to use your User Upload to create a digital fingerprint and then load the digital fingerprint into our Content ID system, which will then scan through every tube video that ClipSentry has ever checked and look for videos that contain the same digital fingerprint as your User Upload.
7.3User Uploads Representations and Warranties. You acknowledge that you are solely responsible for any User Upload you submit, and you, not us, have full responsibility for that content, including its legality, reliability, accuracy, and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Upload submitted by you. You state that the following facts are accurate: (a) you own or control all rights in and to the User Uploads and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; (b) your User Uploads do not and will not (i) 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 or (ii) defame any other person; (c) your User Uploads do not contain any viruses, adware, spyware, worms, or other harmful or malicious code; (d) unless you have received prior written authorization, your User Uploads do not contain any confidential information of any third party; and (e) your User Uploads otherwise comply with the Content Standards stated in section 9.
7.4Content is Uploaded at Your Own Risk. We use reasonable security measures to protect User Uploads against unauthorized copying and distribution. However, we do not guarantee that any unauthorized copying, use, or distribution of User Uploads by third parties will not take place. To the fullest extent permitted by applicable law, we will not be liable for any unauthorized copying, use, or distribution of User Uploads by third parties, and you release and forever waive any claims you may have against us for any such unauthorized copying or use of the User Uploads, under any legal theory. We provide security measures to protect User Uploads “as is” and without any warranties, guarantees, conditions, or assurances that those security measures will withstand attempts to evade security mechanisms or that there will be no cracks, disablements, or other circumvention of those security measures.
8.
Monitoring and Enforcement; Termination
8.1
We may:
(a)Remove or refuse any User Upload for any or no reason in our sole discretion.
(b)Take any action with respect to any User Upload that we consider necessary or appropriate in our sole discretion, including if we believe that User Upload violates this agreement, including the Content Standards stated in section 9; infringes any intellectual property right or other rights of any person or entity; threatens the personal safety of users of the Website or the public; or could create liability for us.
(c)Disclose your identity or other information about you to the extent required by law to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
(d)Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Website.
(e)Terminate or suspend your access to all or part of the Website for any reason, including any violation of this agreement.
8.2
We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.
You waive and hold harmless ClipSentry and ClipSentry’s affiliates, licensees, and service providers from any claims resulting from any action taken by any of the foregoing parties during, or taken as a consequence of, investigations by either those parties or law enforcement authorities.
8.3
However, we do not undertake to review material before it is submitted to the Website and cannot ensure prompt removal of objectionable material after it has been uploaded. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section 8.
9.
Content Standards. These content standards apply to all User Uploads. User Uploads must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Uploads must not:
9.1
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
9.2
Promote or depict children, child exploitation, child abuse, pedophilia, age-play, incest, rape or nonconsensual sex, torture, nonconsensual pain, blood, cutting, erotic asphyxiation, necrophilia, sadomasochistic abuse, genital mutilation, bestiality, urination, defecation, enema play, vomiting, menstrual bleeding, paraphilia, or any other content that would be considered obscene under applicable community standards.
9.3
Promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
9.4
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
9.5
Violate the legal rights (including the rights of publicity and privacy) of any person or contain any material that could give rise to any civil or criminal liability under governing laws or otherwise may be in conflict with this agreement or our Privacy Policy
clipsentry.com/privacy.
9.6
Be likely to deceive any person.
9.7
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
9.8
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
9.9
Impersonate any person or misrepresent your identity or affiliation with any person or organization.
9.10
Involve commercial activities or sales, including contests, sweepstakes, and other sales promotions, barter, or advertising.
9.11
Give the impression that they emanate from or are endorsed by us or any other person, if this is not the case.
9.12
Contain viruses, worms, or Trojan horses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications.
10.
Copyright Infringement. If you believe that any User Upload violates your copyright, please provide us with the following information under the Digital Millennium Copyright Act (DMCA): (1) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (2) identification of the copyrighted work claimed to have been infringed; (3) 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 us to locate the material; (4) your contact information, including your address, telephone number, and an email address; (5) a statement by you 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 (6) 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 copyright owner. It is our policy to terminate the user accounts of repeat infringers.
11.
Reliance on Information Posted
11.1The information presented on or through the Website is made available solely for general information purposes. We are not making any warranty about the accuracy, completeness, or usefulness of this information. Any reliance you place on that information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on those materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
11.2This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, or reporting services. All statements or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the Company’s opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
12.
Changes to the Website. We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are not required to update that material.
13.
Information About You and Your Visits to the Website. All information we collect on this Website is subject to our Privacy Policy
clipsentry.com/privacy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
14.
Subscriptions, Billing, and Cancellation
14.1
Subscription
(a)Ongoing Subscriptions. Your subscription will continue month-to-month (or any longer-term selected) and automatically renew unless you cancel your subscription, or we terminate it. You must provide us with a current, valid, accepted method of payment. Our payment processor will bill the subscription fee to your chosen payment method. You must cancel your subscription before it renews each term to avoid billing of the next term’s subscription fee to your chosen payment method.
(b)Differing Subscriptions. We may offer several subscription plans, including special promotional plans or subscriptions with differing conditions and limitations. We will disclose any different material terms from those described in this agreement to you at signup or in other communications to you.
14.2
Billing
(a)Recurring Billing. By starting your subscription and providing a payment method, you authorize us or our payment processor to charge you a subscription fee at the rate in effect when you originally signed up and any other charges you may incur in connection with your use of the Website, such as taxes or transaction fees. Your subscription will continue for the length of the initial term you select, and, at the end of your initial prepaid term, it will automatically renew for additional prepaid periods of the same length. You must cancel your subscription before it renews to avoid billing of the next term’s subscription fee to your payment method. On renewal, our payment processor will automatically charge you at the rates in effect at the time you originally signed up.
(b)Fee Changes. We may modify the subscription fees at any time in our sole discretion. Any subscription fee change will become effective at the end of the then-current term. We will provide you with reasonable prior notice of any changes in subscription fees to give you an opportunity to cancel your subscription before that change becomes effective. Your continued use of the Website after the subscription fee change comes into effect constitutes your agreement to pay the modified subscription fee amount.
(c)Billing Disputes. If you believe we charged you in error, you must notify us in writing no later than 30 days after you receive the billing statement in which the error first appeared. If you fail to notify us within this 30-day deadline, you waive any disputed charges. You must submit any billing disputes in writing to us at support@clipsentry.com and include a detailed statement describing the nature and amount of the disputed charges. We will correct any mistakes in a bill and add or credit them against your future payments.
(d)Refunds. We consider all subscription purchases final when made, except we may approve a refund in the form of a credit on request if exceptional circumstances exist. If you believe exceptional circumstances exist, please contact us at support@clipsentry.com and explain the exceptional circumstances that you believe merits a refund. We are not making any promise that we will give you a refund. If we give you a refund, we will issue the refund in the form of a credit to the payment method you used for your purchase; we will not make refunds in the form of cash, check, or free services. The provision of a refund in one instance does not entitle you to a refund in the future for similar cases; nor does it obligate us to give refunds in the future under any circumstance.
(e)Cancellation. You may cancel your subscription at any time, and you will continue to have access to the Website through the end of your current subscription term. We do not issue refunds or credits for any partial-subscription periods. To cancel your subscription, please email us at support@clipsentry.com or log into your billing settings page.
15.
Linking to the Website and Social Media Features
15.1
You may link to our homepage, on condition that you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in a way that suggests any form of association, approval, or endorsement on our part without our express written consent.
15.2
This Website may provide certain social media features that enable you to:
(a)Link from your own or certain third-party websites to certain content on this Website.
(b)Send emails or other communications with certain content, or links to certain content, on this Website.
(c)Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
15.3
You may use these features solely as they are provided by us solely with respect to the content they are displayed with and otherwise in accordance with any additional terms we provided with respect to those features. Subject to the foregoing, you must not:
(a)Establish a link from any website that is not owned by you.
(b)Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
(c)Link to any part of the Website other than the homepage.
(d)Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of this agreement.
15.4
The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards stated in section 9 of this agreement.
15.5
You will cooperate with us in causing any unauthorized framing or linking immediately to stop. We may withdraw linking permission without notice.
15.6
We may disable all or any social media features and any links at any time without notice in our discretion.
16.
Links from the Website. If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for those websites.
17.
Use Outside of United States. The owner of the Website is based in the State of Kansas in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
18.
Warranty Disclaimers
18.1You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Website for any reconstruction of any lost data. To the fullest extent provided by law, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Website or any services or items obtained through the Website or to your downloading of any material posted on it, or on any website linked to it.
18.2Your use of the Website, its content, and any services or items obtained through the Website is at your own risk. The Website, its content, and any services or items obtained through the Website are provided “as is” and “as available,” without any warranties of any kind, either express or implied. Neither ClipSentry nor any person associated with it is making any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the Website. Neither ClipSentry nor anyone associated with it represents or warrants that the Website, its content, or any services or items obtained through the Website will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that our Website or the server that makes it available are free of viruses or other harmful components, or that the Website or any services or items obtained through the Website will otherwise meet your needs or expectations.
18.3To the fullest extent provided by law, ClipSentry hereby disclaims all warranties of any kind, whether express or implied, statutory, or otherwise, including but not limited to any warranties of merchantability, noninfringement, and fitness for particular purpose.
18.4The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
19.
Limitation on Liability
19.1To the fullest extent provided by law, in no event will ClipSentry, its affiliates, or their licensors, service providers, employees, agents, officers, or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the Website, any websites linked to it, any content on the Website or those other websites, including any direct, indirect, special, incidental, consequential, or punitive damages, including personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable. Your sole remedy is to stop using the Website and our Services.
19.2If you are dissatisfied with the Website or have any other complaint, your exclusive remedy is to stop using the Website and cancel your subscription. To the fullest extent provided by law, the maximum liability of ClipSentry and its subsidiaries and affiliates, and their licensors, service providers, employees, agents, officers, and directors, to you (regardless of the form of action, whether in contract, tort, or otherwise) will not exceed the greater of $200 and the amount you have paid to ClipSentry for the applicable service in the last six months out of which liability arose.
19.3The foregoing does not affect any liability that cannot be excluded or limited under applicable law.
20.
Waiver of Section 1542. With respect to the releases of liability set out in this agreement, you acknowledge that you understand the consequences of entering into the general release and discharge of all known and unknown claims as stated in this agreement and that you are familiar with the provisions of section 1542 of the California Civil Code, which provides that:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
You hereby waive all rights under section 1542 and under any other federal or state statutes or laws of similar effect.
21.
Indemnification
21.1
In General. You will pay ClipSentry, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (collectively,
“Indemnified Parties”) for any loss of an Indemnified Party that is caused by any of the following: (a) your access of, or conduct on, the Website, including your User Uploads; (b) your breach of this agreement; (c) your violation of rights of any person, including intellectual property, publicity, and privacy rights; (d) your violation of applicable law; (e) your tortious acts or omissions; or (f) your criminal acts or omissions. But you are not required to pay if the loss was caused by an Indemnified Party’s intentional misconduct.
21.2
Definitions
(a)“Loss” means an amount that an Indemnified Party is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b)A loss is “caused by” an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
21.3
Indemnified Party’s Duty to Notify You. The Indemnified Party will notify you before the 30th day after the Indemnified Party knows or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Indemnified Party’s failure to timely notify you does not end your obligation, except if that failure prejudices your ability to defend or mitigate losses.
21.4
Legal Defense of a Claim. The Indemnified Party has control over defending a claim for a loss (including settling it) unless the Indemnified Party directs you to control the defense. If the Indemnified Party directs you to control the defense, you will not settle any litigation without the Indemnified Party’s written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Party, (2) admits the Indemnified Party’s fault, or (3) does not fully release the Indemnified Party from liability. You and the Indemnified Party will cooperate with each other in good faith on a claim.
21.5
No Exclusivity. The Indemnified Parties’ rights under this section 21 do not affect other rights they might have.
22.
Governing Law and Jurisdiction
22.1Governing Law. Kansas law governs all matters arising out of or relating to the Website and this agreement and any dispute or claim arising from or related the Website and this agreement (in each case, including non-contractual disputes or claims) without giving effect to any choice or conflict of law provision or rule (whether of Kansas or any other jurisdiction). The predominant purpose of this agreement is to provide services and to license access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
22.2Jurisdiction and Venue. Any legal suit, action, or proceeding arising out of, or related to, this agreement or the Website will be instituted exclusively in the federal courts of the United States or the courts of the State of Kansas, in each case located in the City of Kansas City and County of Wyandotte, although we retain the right to bring any suit, action, or proceeding against you for breach of this agreement in your country of residence or any other relevant country. You waive all objections to the exercise of jurisdiction over you by those courts and to venue in those courts.
23.
Dispute Resolution and Binding Arbitration
23.1You and ClipSentry are agreeing to give up any rights to litigate claims in a court before a jury, or to participate in a class action or representative action with respect to a claim. Other rights that you would have if you went to court may also be unavailable or may be limited in arbitration.
23.2Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether pre-existing, present, or future, and including statutory, consumer protection, common law, intentional tort, injunctive, and equitable claims) between you and us arising from or relating in any way to the Website or your purchase of services through the Website, will be resolved exclusively and finally by binding arbitration.
23.3The arbitration will be administered by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules (“AAA Rules”) then in effect, except as modified by this section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
23.4The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
23.5If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided in section 24.
23.6You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intent to do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
23.7You agree to an arbitration on an individual basis. In any dispute, neither you nor ClipSentry will be entitled to join or consolidate claims by or against other customers in court or in arbitration or otherwise participate in any claim as a class representative, class member, or in a private attorney general capacity. The arbitral tribunal will not consolidate more than one person’s claims and will not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
23.8If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
24.
Attorney Fees. In any proceedings between the parties arising out of or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 24, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
25.
Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
26.
Class Action Waiver. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless ClipSentry agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.
27.
Limitation on Time to Bring Claims. A party will not bring a claim arising out of or relating to the Website or this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
28.
General
28.1
Entire Agreement. This agreement and our Privacy Policy constitute the entire agreement between you and ClipSentry about the Website and supersede all earlier and contemporaneous understandings, agreements, representations, and warranties, both written and oral, about the Website. Additional terms may also apply to specific portions, services, or features of the Website. All those additional terms are incorporated by this reference into this agreement.
28.2
Assignment and Delegation. ClipSentry may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without ClipSentry’s advanced written permission. Any attempted assignment of rights or delegation of performance in breach of this section 28.2 is void.
28.3
Waiver. No waiver by the Company of any term stated in this agreement will be deemed a further or continuing waiver of that term or a waiver of any other term, and any failure of the Company to assert a right or provision under this agreement will not constitute a waiver of that right or provision.
28.4
Severability. If any provision of this agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, that provision will be eliminated or limited to the minimum extent so that the remaining provisions of this agreement will continue in full effect.
28.5
Notices
(a)Sending Notice to Us. To give us notice under this agreement, you must contact us as follows: (i) by email to support@clipsentry.com; or (ii) by personal delivery, overnight courier, or registered or certified mail to ClipSentry, 12022 Blue Valley Parkway – Overland Park, KS 66213. We may update the email address or address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
(b)Sending Notice to You¬—Electronic Notice. We may provide any notice to you under this agreement by: (i) sending a message to the email address you provide or (ii) by posting to the Website. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective on posting. It is your responsibility to keep your email address current.
28.6
No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
28.7
Successors and Assigns. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
28.8
Electronic Communications, Transactions, and Signatures. Visiting the Website, sending us emails, and completing online forums constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Website, satisfy any legal requirement that that communication be in writing. You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the Website. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
28.9
Consumer Rights Information—California Residents Only. This section 28.9 applies only to California residents. In compliance with section 1789 of the California Civil Code, please note the following:
AV Registry LLC
12022 Blue Valley Parkway
Overland Park, KS 66213
Users who want to gain access to the subscribers-only area of the Website must be a subscriber in good standing. ClipSentry posts the current subscription plans for the Website on the registration page. We may change the subscription plans at any time. Users may contact us support@clipsentry.com to resolve any billing disputes or to receive further information about the Website.
28.10
Complaints—California Residents. You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 North Street, #501, Sacramento, California 95814, or by telephone at +1 (916) 445-1254.
28.11
Feedback. ClipSentry encourages you to provide feedback about the Website or the Services. But ClipSentry will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict its right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
28.12
Survival. On termination of this agreement, any provision which, by its nature or express terms should survive, will survive the termination of this agreement.
28.13
Your Comments and Concerns. You should direct all feedback, comments, requests for technical support, and other communications relating to the Website to: support@clipsentry.com.
