NewBay Media, L.L.C.
Terms and Conditions Terms of Use
Last Updated: January 11, 2011
This website is operated by, or on behalf of
NewBay Media LLC
(?NewBay?) to users 13 years of age or older in the United States
Please read these Terms and Conditions of Use (?Terms and Conditions?)
carefully. These Terms of Use, including all documents referenced
herein, represents the entire understanding between NewBay and you
regarding your use of this site and supersedes any prior statements or
representations. The site?s Privacy Policy is incorporated into these
Terms and Conditions by reference and is made a part hereof.
Access,
distribution and/or use of to this Site is subject to all applicable
laws and regulations. To the extent that access, distribution and/or
use of this Site would be deemed illegal by governing law, such access,
distribution and/or use is prohibited. By visiting any area on the
NewBay Site you are deemed to have accepted these Terms of Use. If you
do not agree to abide by these Terms and Conditions, please do not use
this Site.
Use of Materials
All material on
this Site, including but not limited to software, images, music, text,
?applets,? logos and trademarks, along with the overall ?look and feel?
of the website (collectively referred to as the ?Material?), is
protected under various intellectual property laws and owned or
controlled by NewBay, or used with permission of the owner(s) of such
Material. Except as otherwise indicated on this website, copying,
reproduction, uploading, downloading, transmitting or any other use of
this site or of any of the Material, in whole or part, without the
express permission of NewBay, is prohibited. You may, however, copy,
reproduce, download, transmit and/or print individual pages contained
on this Site for your personal, non-commercial use, provided you agree
not to conceal, remove or alter any trademark, copyright or other
notice contained on: (i) this site; (ii) any of the Material; or (iii)
any such individual pages so copied, reproduced, downloaded,
transmitted or printed. You may not copy, reproduce, download transmit
and/or print substantial portions of this Site or the materials
contained hereon without the express written permission of NewBay. Any
unauthorized use of this Site and/or the Materials may subject the user
to criminal prosecution and/or civil liability under applicable law.
Privacy
Please see NewBay?s Privacy Policy.
CLICK HERE
for information concerning the collection and use of Personal Consumer Information from this site.
Links
From
time to time, the NewBay website may contain links to other websites
that are not controlled and/or maintained by NewBay. Access to and use
of such other websites is at your own risk and subject to any terms,
conditions and privacy policies that govern such websites, which may be
different from those of NewBay and/or may provide their users with less
security than the NewBay Site. By providing such links, NewBay shall
not be deemed to endorse, recommend, approve or guarantee any third
parties or their services or products, or any facts, views, advice,
information and/or products found on such websites. NewBay is not
responsible for the content contained on any such sites, or for the
failure of any product or service offered for sale on any such sites or
for any damages that may result there from. Copyrights in the materials
or information on the linked sites are owned by other organizations.
User Submitted Content
On
certain sections of this Site, you may be permitted to post comments,
information, creative works (including but not limited to audio or
audiovisual works) or other materials (?User Content?). You acknowledge
and agree that you are solely responsible for any User Content that you
post. You further acknowledge and agree that NewBay has no
responsibility for, or ownership of, any User Content posted at this
Site and will not be liable for any User Content that is in violation
of these Terms and Conditions. With respect to all User Content that
you post, you represent and warrant that: (i) the material is either
fully original to you or that you have all necessary rights, licenses
and permissions needed to post the material at this Site (including but
not limited to all copyright and right of publicity/privacy rights),
and to grant, and hereby do grant, NewBay and all other users of this
Site a world-wide, non-exclusive, royalty-free license that can be
fully assigned and sub-licensed, to use such User Content as
contemplated by the Site; (ii) such User Content will not infringe the
rights of any person or entity, or violate any governmental rule,
regulation statute or law, or the terms and conditions of use of this
Site; (iii) no money will be owing to any party as a result of the
posting of the User Content or its use as contemplated by this Site;
(iv) you will be responsible for all User Content submitted through
your account, and for all purposes under these Terms and Conditions,
all submissions from your account shall be deemed to have been
submitted by you.
NewBay has no control over, and does not
endorse, any User Content and expressly disclaims any and all liability
in connection with any User Content. However, in connection with User
Content posted at this Site, in addition to all other rights it has
under this Agreement, at law or in equity, NewBay reserves the right in
its sole and absolute discretion, to: (i) remove without notice ,or
refuse to post in the first instance, any User Content; (ii) revoke any
user?s right to use this Site.
Any User Content sought to be
posted at the Site must conform, in the sole and exclusive opinion of
NewBay, to the following rules and standards. It must: (i) conform to
all applicable laws, (ii) be appropriate in the context of the general
purposes of the Site; (ii) not be obscene, pornographic, patently
offensive, hateful, abusive or promote racism or discrimination of any
kind; (iii) not provide personal information, or solicit such
information from any other user of the Site; (iv) not involve or result
in the transmission of junk e-mail, unsolicited mass e-mailings,
?spamming,? ?spimming? or ?phishing;? (v) not transmit or distribute
any potentially harmful programs such as Trojan horses, worms, viruses,
spyware or any malicious software or code; (vi) not contain any
material or images owned by any other person or entity unless you have
obtained all necessary rights, licenses and permissions needed to post
the material and have it used as contemplated by this Site; and (vii)
be only for non-commercial purposes.
Promotions, Sweepstakes and Contests
On
occasion, NewBay or certain advertisers or suppliers to this Site may
elect to conduct certain promotions, sweepstakes or contests
(collectively, ?Promotions?) on this Site. Each such Promotion may have
specific rules and regulations, which will be made available to users
and which shall be deemed incorporated in and become a part of these
Terms and Conditions.
Copyright Infringement Policy
NewBay
values intellectual property and respects the intellectual property
rights of others, and will remove materials on its Site that infringe
the copyrights of others. If you believe that your copyrighted material
may have been infringed by material contained on this website, then
pursuant to Title 17, United States Code, ?512, you may notify NewBay?s
Designated Agent in writing as follows:
Copy Right Coordinator
NewBay Media LLC
28 East 28th Street, 12th floor
New York, NY 10016
copyrightcoordinator@nbmedia.com
In your notice, you must include the following:
(i) a physical or electronic signature of the owner of an exclusive
right that is being infringed or of a person authorized to act on
behalf of such owner;
(ii) identification of the copyrighted work(s) that is (are) allegedly being infringed;
(iii) identification of the materials that are causing the infringement
and that are to be removed, along with sufficient information to allow
us to locate such materials;
(iv) contact information (i.e., name, address, email address) sufficient to enable NewBay to contact you;
(v) a statement to the effect that you have a good faith belief that
the complained of use of the material was not authorized by the owner
of the copyright, its agent or the law;
(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 the exclusive right that is allegedly being infringed.
Additional/Different Terms
Certain
pages or sections of this Site may contain terms and conditions of use
which are in addition to or different from these Terms and Conditions.
For example, certain Promotions or content that is designated as
?premium? or ?special? content only be made available to users of the
site that consent to NewBay?s sharing of their Personal Consumer
Information with the sponsors of such Promotions and/or advertisers
appearing on the such content pages. In the event that there is a
conflict between such additional and/or different terms and conditions
of use and these Terms and Conditions, the additional and/or different
terms and conditions will govern with respect to the specific pages or
sections to which they apply.
Limitation of Liability and Use Disclaimer
NewBay
is not responsible for any damages or loss related to the use of this
site. THIS SITE, ALL MATERIAL CONTAINED ON THIS SITE, AND ALL LINKS OR
OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED ?AS IS? AND
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THAT THE SITE, ITS FEATURES AND FUNCTIONS, WILL BE
AVAILABLE FOR USE OR WORK AS DESCRIBED. THERE ARE NO WARRANTIES
REGARDING TITLE, SECURITY, ACCURACY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE SITE OR THE MATERIALS
CONTAINED HEREON. ANY INFORMATION CONTAINED WITHIN THIS WEBSITE IS
SUBJECT TO AMENDMENT, REVISION OR UPDATING WITHOUT NOTICE AT ANY TIME.
NEWBAY RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE PAGES OF
THIS SITE WITHOUT NOTICE AT ANY TIME AND ACCEPTS NO RESPONSIBILITY FOR
THESE PAGES NOT BEING AVAILABLE AT ALL TIMES. NEWBAY SHALL NOT BE
LIABLE FOR ANY ALLEGED DAMAGE OR INJURY, INCLUDING BUT NOT LIMITED TO
ANY COMPENSATORY, CONSEQUENTIAL, DIRECT, INDIRECT AND/OR SPECIAL
DAMAGES, THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS
WEBSITE OR ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS,
MALFUNCTION OR OTHER FAILURE.
Certain jurisdictions prohibit
the limitation of liability for certain types of damages, and
accordingly, such limitations may not apply to you. In such
jurisdictions, NewBay?s liability is limited to the greatest extent
allowable under applicable law.
Transmitting and Downloading
NewBay
is not responsible for any damages incurred as a result of any
interruption, transmission blackout, delayed transmission or incorrect
data transmission over the Internet.
NewBay does not warrant or
represent that this Site will meet your requirements, that access will
not be interrupted or delayed, that there will be no failures, errors
or omissions or loss of transmitted information, that no viruses will
be transmitted or that no damage will occur to your computer system.
Your Responsibilities
You
are responsible for undertaking suitable precautions to scan for
computer viruses and maintaining a back up of all data and/or equipment.
By
using this Site, you agree that you will be responsible for maintaining
the confidentiality of your password and account information, and that
you will restrict access to your computer to avoid disclosure of such.
You further agree that you will be responsible for all activity taken
under your password and/or account.
Indemnity
You
agree to indemnify, defend and hold harmless NewBay Media LLC, its
parent corporation, officers, directors, employees and agents from and
against any and all claims, demands, losses, liabilities, damages,
costs and expenses (including but not limited to attorneys fees)
arising from or in connection with: (i) your use of the Site; (ii) your
violation of these Terms and Conditions; and/or (iii) any User Content
submitted by you to the Site. You agree that your representations and
warranties, and obligation to indemnify NewBay shall survive beyond any
term that these Terms and Conditions are in effect.
Electronic Communications
When
you communicate with NewBay electronically, via email or otherwise, you
consent to receive electronic communications from NewBay. You agree
that all communications (including, but not limited to all notices,
agreements and disclosures) provided to you electronically by NewBay
satisfy any legal requirement that such communication be in writing.
Changes in Policy
From
time to time, the policies set forth in these Terms and Conditions may
change. We will post changes to the Terms and Conditions of Use at this
site. Please review these Terms and Conditions of Use often so that you
will remain abreast of our current policies. Your use of this site
subsequent to any amendment of these Terms and Conditions will signify
your acceptance of, and assent to, its revised terms. These Terms and
Conditions of Use were last updated on 1/11/2011 and are effective
immediately.
Acquisition of Business
In the
event that NewBay is involved in a merger, acquisition, consolidation,
restructuring, reorganization, liquidation, sale or similar transaction
relating to any portion of its business and/or assets, you hereby
acknowledge and agree that this site and all of NewBay?s rights
hereunder may be included in the assets of, and/or transferred pursuant
to, such transaction. If that occurs, NewBay will post a notice to such
effect on this website.
Contact Us
If you
have any questions concerning our website or any of the policies set
forth in these Terms and Conditions of Use, please contact us at:
NewBay Media LLC
28 East 28th Street, 12th floor
New York, NY 10016
Attn.: Todd Baker
www.nbmedia.com
Applicable Law/Dispute Procedures
Use
of this site and these Terms and Conditions shall be governed by the
laws of the State of New York, without regard to its conflict of law
provisions. Any dispute concerning your use of this site shall be
submitted to binding arbitration in New York within one (1) year from
the date that the cause of action arose (or, if multiple cause of
actions are involved, from the date that the first cause of action
arose), with such arbitration conducted pursuant to the then prevailing
rules of the American Arbitration Association. To the fullest extent
permitted by law, no arbitration brought pursuant to these Terms and
Conditions shall be joined to any other arbitration initiated pursuant
to these Terms and Conditions.
Notwithstanding anything to the
contrary set forth in these Terms and Conditions, NewBay may at any
time seek injunctive or other appropriate relief against you and/or
against others, in any state or federal court in the state of New York,
in the event that NewBay believes that you have violated or threatened
to violate any of NewBay?s intellectual property rights and you hereby
consent to the exclusive jurisdiction and venue of such courts.
If
any portion of these Terms and Conditions are deemed unenforceable,
unlawful or void by a Court of competent jurisdiction, then that
portion of the Terms and Conditions will be deemed severable and will
not affect the enforceability or validity of the remaining portions of
these Terms and Conditions. No waiver by NewBay of any term or
condition of these Terms and Conditions shall be deemed a further or
continuing waiver of such term or of any other term, and NewBay?s
failure to assert any right or demand compliance with any provision of
these Terms and Conditions shall not be deemed to constitute a waiver
of any such right or provision.
TM and Copyright 2011 NewBay Media LLC. All rights reserved.