Last Updated: November 21, 2012
Welcome to http://www.usepluck.com (the “Site”). These Terms of Service (these “Terms”) are between Format Dynamics, Inc. (“Format Dynamics”) and you (“Customer”) and govern Customer’s right to access and use the solution provided by Format Dynamics for saving, and sharing online content (the "Service") The Service includes, individually and collectively, the Site, any software or plug-in that allows end users to use certain functionality in connection with certain features of the Service (the "Format Dynamics Software") and any documentation specifying the functionality of the Service provided or made available by Format Dynamics (the "Documentation"). Format Dynamics and Customer will each be known as a "Party" and collectively as the "Parties."
CUSTOMER'S RIGHT TO USE THE SERVICE IS SUBJECT TO CUSTOMER'S ACCEPTANCE OF AND CONTINUING COMPLIANCE WITH thESE TERMS. Customer accepts these Terms by either: (a) clicking an option to "accept" or "agree" to these Terms, where such option is made available by Format Dynamics; or (b) by actually using the Service, in which event Customer hereby agrees that such use constitutes acceptance of these Terms from that time onwards. By accessing or using the Service or otherwise agreeing to the Terms, Customer represents that Customer is at least 18 years old. If the individual accepting these Terms is doing so on behalf of an employer or other entity, such individual represents and warrants that such individual has full legal authority to bind such employer or other entity to these Terms; and, if the individual does not have the requisite authority, the individual may not accept these Terms or use the Service on behalf of such employer or other entity. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT USE THE SERVICE.
1. ACCESS, REGISTRATION AND SOFTWARE
Subject to Customer’s continued compliance with these Terms, Format Dynamics hereby grants Customer the non-exclusive right during the Term to access and use the Service. An individual Customer may access the Service by downloading the Format Dynamics Software for such Customer's browser. Subject to the Terms, Format Dynamics hereby grants to Customer a limited, revocable, non-transferable, non-exclusive license to download, install and run the Format Dynamics Software on Customer's browser.
If Customer is presented with separate terms governing the use of the Format Dynamics Software, then those terms apply and take precedence over the terms in this Section governing the use of the Format Dynamics Software. Format Dynamics Software is licensed, not sold. Unless Format Dynamics notifies Customer otherwise, the Format Dynamics Software license ends when the Service ends. When the Service ends, Customer will promptly uninstall the Format Dynamics Software.
2. PROPRIETARY RIGHTS
The Service is protected by intellectual property rights, including, as applicable and without limitation, copyrights, trademarks, patents, patent applications, trade secrets and other proprietary and intellectual property rights (“Intellectual Property Rights”). As between Format Dynamics and Customer, Format Dynamics and its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to Customer above to use the Service. No title to or ownership of any proprietary rights related to the Service is transferred to Customer pursuant to these Terms or any transaction contemplated by these Terms. All rights not explicitly granted to Customer are reserved by Format Dynamics. In the event that Customer provides comments, suggestions and recommendations to Format Dynamics with respect to the Service (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), Customer hereby grants Format Dynamics a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
3. CONTENT AND THIRD PARTY SERVICES
Except for the material Format Dynamics licenses to Customer, Format Dynamics does not claim ownership of the text, files, images, graphics, illustrations, information, data, audio, video, photographs, advertising, and other content (“Content”) that Customer transmits through or processes using the Service. Format Dynamics also doesn’t control or verify the Content that Customer makes available to others through the Service.
Customer retains all of its ownership rights in its Content. By using the Service with Content provided or accessed by Customer (“Customer Content”), Customer hereby grants Format Dynamics and its contractors a worldwide, royalty-free, sublicensable and transferrable license to use, modify, adapt, reproduce, distribute, prepare derivative works of, display and disclose the Customer Content in connection with the Service or as otherwise permitted by these Terms. Customer will ensure that the Customer Content does not contain third party copyrighted material, unless Customer has permission from the third party owner of the material or Customer has the legal right to use, store, modify and reproduce such material and grant Format Dynamics all the rights required by these Terms.
Customer will: (a) be solely responsible for the nature, quality and accuracy of the Customer Content; (b) ensure that the Customer Content (including the processing, modification, storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; and (c) promptly handle and resolve any notices and claims relating to the Customer Content, including any notices sent to Customer by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices.
All transactions using the Service are between the transacting parties only. The Service may contain features and functionalities linking Customer or providing Customer with certain functionality and access to third party Content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; Customer acknowledges that Format Dynamics is not responsible for such third-party Content or services. Similarly, Format Dynamics is not responsible for any third-party material contained in the Customer Content, and Customer irrevocably waives any claim against Format Dynamics with respect to such third-party material.
Customer will defend, indemnify and hold harmless Format Dynamics from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorneys’ fees) incurred or arising from any claim by a third party arising out of the Customer Content, the third-party materials incorporated in the Customer Content and the use thereof by Format Dynamics in providing the Service.
Format Dynamics does not permit infringement of intellectual property rights through the Service, and Format Dynamics has the right to remove all Content, including Customer Content, if it believes that such Content may infringe on another’s intellectual property rights.
Customer will not and will not encourage or assist any third party to:(a) modify, alter, tamper with, repair or otherwise create derivative works of any Format Dynamics Software;
(g) use the Format Dynamics Software or Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store, process or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store, process or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(h) interfere with or disrupt servers or networks used by Format Dynamics to provide the Service or used by other users’ to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any Format Dynamics Software or the Service;(i) cause, in Format Dynamics’ sole discretion, inordinate burden on the Service or Format Dynamics’ system resources or capacity; or
5. SUSPENSION OF SERVICE
6. CLAIMS OF COPYRIGHT INFRINGEMENT
Format Dynamics prohibits the use of its Service for the illegal use of copyrighted material, and will respond if notified by content owners to stop copyrighted material from being used or transmitted via its Service. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Format Dynamics’ agent for notice of claims of copyright or other intellectual property infringement (“Agent”) the written information specified below: (1) A description of the copyrighted work that you claim has been infringed upon; (2) A description of where the material that you claim is infringing is located, with enough detail so that we can locate it; (3) Your address, telephone number, and e-mail address; (4) A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (5) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (6) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.Format Dynamics' Copyright Agent for Notice of Claims of Copyright Infringement can be reached as follows:
8. NO WARRANTY
FORMAT DYNAMICS PROVIDES ITS SERVICE “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ABLE TO PROPERLY DISPLAY ALL ONLINE CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FORMAT DYNAMICS MAKES NO (AND FORMAT DYNAMICS SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
Customer agrees to indemnify, defend and hold harmless, Format Dynamics, its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, arising from (a) any claim that Customer or the Customer Content violates a third party intellectual property right, (b) any claim that the Customer Content caused any damage, (c) Customer’s access or use of the Service, and (d) any violation of these Terms by Customer. Format Dynamics reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by Customer, in which event Customer will fully cooperate with Format Dynamics in asserting any available defenses. Format Dynamics will provide Customer with notice of any such claim or allegation subject to Customer's indemnification obligation in this paragraph.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FORMAT DYNAMICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, GOODWILL, USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. To the MAXIMUM extent permitted by Applicable Law, the aggregate liability of FORMAT DYNAMICS and ITS respective Affiliates, contractors and Agents, arising under thESE TERMS WILL be limited in the aggregate to direct damages up to the amount of ONE DOLLAR ($1.00) Or the Minimum amount ALLOWED BY LAW, WHICHEVER IS GREATER.
Except as expressly stated otherwise, any notices required or allowed under these Terms will be given to Format Dynamics by postal mail to the address for Format Dynamics listed on the Site or by emailing Format Dynamics at firstname.lastname@example.org. With respect to Format Dynamics' notices to Customer, Format Dynamics may provide notices by posting them on the Site. In addition, or in lieu thereof, Format Dynamics may give notice by sending an email to the email address Customer provided to Format Dynamics. Notice shall be deemed given 24 hours after it is posted or an email is sent.
12. CHANGES TO THESE TERMS
Format Dynamics reserves the right to modify or replace these Terms at any time and in Format Dynamics’ sole discretion. Format Dynamics will indicate at the top of these Terms the date these Terms were last updated. Any changes will be effective immediately upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms). Customer’s continued use of the Service will constitute Customer’s acceptance of such changes. If Customer rejects such changes, Customer must immediately stop using the Service and promptly notify Format Dynamics in writing of such rejection. In addition, Format Dynamics may provide other methods by which Customer may accept these Terms or changes to these Terms. If Customer does not agree to any of the changes to the Terms, Format Dynamics is not obligated to keep providing the Service, and Customer must cancel and stop using the Service.
13. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.
By using the Service, Customer understands that Format Dynamics may send Customer communications or data regarding the Service, including but not limited to (a) notices about Customer's use of the Service, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Format Dynamics' products and services, via electronic mail. Format Dynamics gives Customer the opportunity to opt-out of receiving electronic mail from Format Dynamics by following the opt-out instructions provided in the message.
14. CONTENT STORED IN THE UNITED STATES
The Service is provided from the United States. By using and accessing the Service, Customer understands and consents to the processing of the Content and any other personal information in the United States. Format Dynamics reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide Customer with prior notice of any such changes in the processing location.
15. RESTRICTIONS ON SOFTWARE
The Format Dynamics Software is subject to applicable U.S. export laws and regulations. Customer must comply with all domestic and international export laws and regulations that apply to the Format Dynamics Software. These laws include restrictions on destinations, end users, and end use. Without limitation, Customer may not transfer the Format Dynamics Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's Lists to Check). Customer represents and warrants that Customer is not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
The failure of Format Dynamics to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of Format Dynamics' right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of these Terms or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Format Dynamics. Format Dynamics may assign these Terms without obtaining Customer’s consent: (a) to an affiliate of Format Dynamics; or (b) in connection with a merger, reorganization or a sale of substantially all of the assets of Format Dynamics. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. These Terms, together with any other agreement Customer may have entered into (or may enter into) in writing with Format Dynamics relating to the Service, constitutes the entire agreement, and supersedes any and all prior agreements, between Customer and Format Dynamics with regard to the subject matter hereof. In the event that any provision of these Terms, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of these Terms will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. These Terms will be construed and enforced in all respects in accordance with the laws of the State of Colorado, U.S.A., without reference to its choice of law rules. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Customer hereby irrevocably and unconditionally consents to the jurisdiction and venue in the state and federal courts sitting in Denver, Colorado. If Customer is a U.S. government entity, Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God or other similar causes), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.