The Overflow Terms and Conditions (“Agreement”)
Version 1.0, published September 8, 2014.
1. INTRODUCTION AND ACCEPTANCE OF TERMS
Welcome to TheOverflow®, an online music subscription service that allows you to discover, play and download/sync Christian & Gospel music on your compatible mobile devices from your web browser, in a desktop application and on your compatible mobile devices. TheOverflow’s website is located at www.TheOverflow.com (the “TheOverflow Site”). We refer to the TheOverflow Site and the software applications made available by TheOverflow as the “Service Applications”, and we refer to the Service Applications and the service provided through the Service Applications, collectively, as the “TheOverflow Service”). These Terms of Service (“Terms of Service”) set forth a binding agreement between you and TheOverflow governing your use of the TheOverflow Service. These Terms of Service act as the end user license agreement (or “EULA”) governing your use of the desktop and mobile Service Applications.
In these Terms of Service, “TheOverflow” means TheOverflow.com a Delaware corporation, with its principal business address at 19 Walnut Glen Place, Markham, Ontario, Canada. Please read these Terms of Service carefully. By using any of the TheOverflow Service, or by creating a user account, you signify your acceptance of these Terms of Service, as they may be amended by TheOverflow from time to time in its sole discretion. You may only use the TheOverflow Service and/or open an account if your acceptance of these Terms of Service is not prohibited by applicable law. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD. If you are younger than 18 years old, you must get permission from a parent or guardian to open an account and your parent or guardian must agree to these Terms of Service. If you do not agree to these Terms of Service, then you must cease using the TheOverflow Service. THESE TERMS OF SERVICE ARE GOVERNED BY THE LAWS SET FORTH IN SECTION 23, DEPENDING ON THE TERRITORY IN WHICH YOU USE THE THEOVERFLOW SERVICE.
2. PAYMENT TERMS
Please refer to our Payment Terms for the payment terms, conditions and policies applicable to the subscription services, and other paid services made available through the TheOverflow Service. By subscribing for, ordering and/or purchasing any subscription, or other paid services, you agree to be bound by and accept the Payment Terms. The Payment Terms are subject to change without prior notice at any time, at TheOverflow’s sole discretion. You should review the Payment Terms each time you subscribe for, order and/or purchase any subscription, or other paid services offered by TheOverflow. TheOverflow’s subscriptions, and other paid services are made available through the TheOverflow Service, and are accordingly also subject to these Terms of Service. The Payment Terms are incorporated into these Terms of Service by this reference.
3. THEOVERFLOW SERVICE
Paid Subscription-based Streaming TheOverflow’s paid subscription service provides for full-length streaming of songs across any platform on which TheOverflow makes the TheOverflow Service available (i.e., on or through any of the Service Applications), depending on your subscription tier. Subscribers to TheOverflow’s “Unlimited” subscription tier will also have an offline option to select songs to play back on their compatible mobile devices (when download/synced), even when there is no Internet or mobile connection available.
You will be able to access aspects of the TheOverflow Service on compatible mobile devices (through an applicable mobile Service Application. An Internet enabled mobile device on which you have downloaded the applicable mobile Service Application is required. Standard data and usage charges instituted by your mobile carrier may apply (and are not included in any subscription fee paid to TheOverflow) and, accordingly, you should check with your mobile carrier regarding the terms of your individual data or usage plan. As a subscriber to TheOverflow, you will be able to access TheOverflow’s catalog of songs no matter where you travel, provided, however, the songs available to you in any particular territory will depend upon the rights TheOverflow obtains with respect to that territory. Notwithstanding this, those songs that you are permitted to retain on your compatible mobile device may be played no matter what the territory for so long as you remain a subscriber to TheOverflow, and the TheOverflow mobile Service Application can communicate with TheOverflow’s servers every 30 days.
TheOverflow Service is intended to provide full-length streaming of TheOverflow’s entire catalog, and depending on your subscription tier, the ability to select songs for playback offline. You understand and acknowledge, however, that your ability to access songs will depend on you having all necessary equipment and telecommunications systems required and that there may be instances where our rights to songs are limited by our licensors (i.e., some songs may not be available for streaming), in which event, your access to those songs would be limited.
3.3 Family Plans
TheOverflow may from time to time introduce subscription tiers that allow multiple family members to utilize the TheOverflow Service through one subscription to a family subscription tier. The terms and conditions of the family subscription tier will be as described on or through the TheOverflow Service, and unless otherwise stated, will have the general features of TheOverflow’s “Unlimited” subscription tier.
4.1 TheOverflow’s Sharing Policy
When you discover, play, download/sync and share music or other content on or through the TheOverflow Service, you authorize TheOverflow to share and/or publicly display such activity on or through: (i) the TheOverflow Service; and (ii) any third party social networking sites and services you have linked to your TheOverflow account, such as Facebook or Twitter (“Social Networks”).
4.2 Abuse Policy
TheOverflow reserves the right to manage the TheOverflow Service in a manner that it believes best benefits its users and best enables it to maintain the TheOverflow Service. TheOverflow Service is for your own personal, non-commercial use, and accordingly, TheOverflow has determined that its ability to provide the TheOverflow Service is disrupted when users stream an abnormally high number of songs in a short amount of time, or otherwise stream songs in a manner that is not consistent with normal, personal use (even if those activities technically comply with the specific terms of any free or paid offering). Thus, TheOverflow reserves the right to discontinue any portion or all of the TheOverflow Service, or to terminate or suspend the account of any person, that, in TheOverflow’s experience and sole determination, cause or result in disruptive usage patterns or, with respect to individual account holders, otherwise use the TheOverflow Service in a manner that is not consistent with normal, personal use. For example, you should not share your account to TheOverflow with anyone, use TheOverflow as a radio station or jukebox in your commercial establishment (regardless of the type of establishment) or other public space, or have a software application use the TheOverflow Service for you for any purpose (unless otherwise permitted by TheOverflow).
5. PROPRIETARY RIGHTS
You acknowledge and agree that TheOverflow, and its licensors, retain all right, title and interest in and to all data and information (excluding data and information that you provide), content and materials provided on or through the TheOverflow Service (including, without limitation, the musical compositions, audiovisual works, editorial and contextual information (about artists and songs), text, images, photographs, videos, graphics, page headers, the selection and arrangement of elements displayed on or through the TheOverflow Service, the compilation of all content and materials on the TheOverflow Service, and the business process, procedures, methods and techniques used in the TheOverflow Service) and all associated patent rights, copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world. TheOverflow®, the TheOverflow logo and the TheOverflow “button” logo are the common law and/or registered trademarks of TheOverflow, Inc., and all other proprietary trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the TheOverflow Service (including, without limitation, as displayed on or through any of the Service Applications) are the property of TheOverflow.com Inc. TheOverflow’s intellectual property, including, without limitation, its trademarks and trade dress, may not be used in any manner that is likely to cause confusion among users, or in any manner that disparages TheOverflow. All rights are expressly reserved.
All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, and other intellectual property contained on or within the Service Applications and through the TheOverflow Service are the property of the respective third parties, including the respective content owners, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such intellectual property. Use of third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to TheOverflow to enforce any of your rights in relation thereto.
7. LIMITED LICENSE
TheOverflow grants you a limited, non-exclusive and non-assignable license to access and use the TheOverflow Service for your personal, non-commercial use, subject to all of the terms and conditions of these Terms of Service and not for redistribution of any kind. TheOverflow may make certain software, including, without limitation, the Service Applications, available to you through your use of the TheOverflow Service. The Service Applications are deemed licensed to you by TheOverflow under a non-exclusive, non-assignable license for your personal, non-commercial, use only, and your use of such Service Applications is subject to these Terms of Service. With respect to any mobile Service Application, this license is limited to the right to use the applicable mobile Service Application solely on a device that you own or control and as permitted by any usage rules made available from time to time by the applicable provider of a mobile application platform. TheOverflow does not transfer, and, as between you and TheOverflow, retains all title to and ownership of the Service Applications and all intellectual property rights in the Service Applications. You may not take any action to jeopardize, limit or interfere with TheOverflow’s ownership of and rights with respect to the Service Applications. You acknowledge that any unauthorized copying or unauthorized use of the Service Applications is a violation of these Terms of Service and is strictly prohibited.
Additionally, you may not (i) remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the TheOverflow Service, (ii) reproduce, download (other than page caching), modify, publish, distribute, transmit, disseminate, broadcast, transfer, license, sell, rent, lease, adapt, create derivative works of, publicly display or perform, or in any way exploit any content, materials or individual elements provided on or through the TheOverflow Service without TheOverflow’s prior written consent, (iii) make any commercial use or any derivative use of any of the TheOverflow Service or any of the content, materials or individual elements provided on or through the TheOverflow Service, (iv) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the TheOverflow Service without TheOverflow’s prior written consent, (v) use any circumvention tools or any metatags or other hidden text utilizing TheOverflow’s name, trademark, URL or the name of any of the TheOverflow Service without TheOverflow’s prior written consent, or (vi) disassemble, decompile or reverse engineer the Software or any other materials made available on or through the TheOverflow Service or used to provide any of the TheOverflow Service.
The owners of entertainment Content made available through the TheOverflow Service (including principals, where TheOverflow is acting as sales agent) are intended third-party beneficiaries of these Terms of Service and will have the right to enforce these Terms of Service against you and invoke all rights hereunder including limitations of liability. TheOverflow, as a reseller to you, does not accept orders from music dealers, exporters, wholesalers, any businesses of any kind or other customers who intend to resell. The delivery of a product or Content does not transfer to you any commercial or promotional use rights in the product or Content.
8. ACCOUNTS AND SECURITY
To access the Service Applications or use certain aspects of the TheOverflow Service, you will be directed to create a user account by providing certain information about yourself, or to create new, or to use existing Social Network log-in details. As part of TheOverflow’s stand-alone registration process, you will be asked to submit, among other things, your email address and to select a password. You agree that all information you provide to TheOverflow for purposes of creating an account (“Registration Information”) will be true, accurate, current and complete and your failure to provide such information will constitute a breach of these Terms of Service and may result in the immediate termination of your account. By utilizing your Social Network log-in details to log into the TheOverflow Service (including on or through any of the Service Applications), or by linking your TheOverflow Service account with any Social Network account, you expressly authorize TheOverflow to receive, and for such Social Network to share, certain of your information that is available on your Social Network account, including, without limitation, your profile information, friends names, your photos, privacy settings and certain other information that will be disclosed to you (and authorized by you) during the log-in process; and you also authorize TheOverflow to generate and publish on your Social Network news feed or timeline actions you take on the TheOverflow Service, and to allow you to interact with your Social Network friends on the TheOverflow Service. If linked, you agree to allow the Social Networks to receive information concerning the actions you take on the TheOverflow Service. In the event you no longer want the TheOverflow Service to publish your TheOverflow activity on your Social Network news feed or timeline, or want to otherwise limit the ways in which the TheOverflow Service interacts with your Social Network account, you can always disable aspects of this feature by changing your application settings in the Social Networks. The Social Networks are made available by their respective corporate entities.
Without limiting the above, by submitting your information through the Service Applications, and/or by utilizing Social Network log-in details to log-in to the TheOverflow Service, by linking your TheOverflow Service account with any Social Network account, or by otherwise providing Registration Information to TheOverflow, you grant TheOverflow a perpetual, royalty-free, non-exclusive license to use, reproduce, transmit, and display the information obtained from these third parties and any Registration Information in connection with TheOverflow’s operation of the Service Applications and/or performance of the TheOverflow Service (subject to the other terms and conditions of these Terms of Service, including Section 4.1). You will (i) promptly update your Registration Information to keep it true, accurate, current and complete, (ii) maintain the confidentiality of your log-in credentials, and (iii) properly exit from your account at the end of each session. You will not (a) select or use the Social Network account or email address of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address that is profane, offensive or otherwise inappropriate, or (d) allow any other party to use your account and/or password. You agree to notify TheOverflow immediately of any known or suspected unauthorized use(s) of your account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your user name or password or Social Network account log-in details. You understand and agree that you will be liable for all activities that occur under any account created for your use, even if such activities were not committed by you. TheOverflow is not responsible for any loss or damage as a result of someone else using your account or password with or without your knowledge.
10. CONTENT PROVIDED BY YOU
You understand that all data, information, text, images, software, sounds, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, on the Service Applications or through the use of any of the TheOverflow Service, are the sole responsibility of the person posting or transmitting such Content. You, and not TheOverflow, are entirely responsible for all Content that you upload, post, email, transmit, distribute or otherwise make available on the Service Applications or through the use of any of the TheOverflow Service or that is provided or transmitted through your account. You acknowledge that you will have the burden of proving that any such Content does not violate any laws or infringe any third party rights.
TheOverflow does not control user-generated Content posted on or through the Service Applications or transmitted through the use of any of the TheOverflow Service and, as such, does not guarantee the accuracy, reliability or quality of such Content. You understand that by using the Service Applications or using any of the TheOverflow Service, you may be exposed to user-generated Content that you may consider to be offensive, indecent or objectionable. Under no circumstances will TheOverflow be liable in any way for any user-generated Content including, but not limited to, any errors or omissions in any user-generated Content, or any loss or damage of any kind incurred as a result of the use of any user-generated Content posted, emailed, transmitted or otherwise made available on or through the Service Applications or through the use of any of the TheOverflow Service. You agree that TheOverflow may, in its sole discretion, refuse to post, store or transmit any Content submitted by you and may move, remove, edit or modify any such Content for any reason at any time.
You acknowledge, consent and agree that TheOverflow may access, preserve and disclose account information and/or Content that you provide if TheOverflow is required to do so by law or if it believes in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms of Service, (iii) respond to claims that any Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of TheOverflow, its employees, partners and agents or members of the public. By posting, displaying or performing Content on or through the Service Applications or transmitting or otherwise distributing Content through the use of any of the TheOverflow Service, you grant TheOverflow and its affiliates, successors and assigns, a perpetual, irrevocable royalty-free, worldwide, non-exclusive license to use, reproduce, distribute, transmit, display, publicly perform, edit, translate and reformat such Content in connection with the operation of the Service Applications and/or performance of the TheOverflow Service for you by TheOverflow or any of its affiliates, successors, assigns or agents. You will not be compensated for any Content that you provide. You agree that TheOverflow may publish or otherwise disclose your name in connection with your Content. By posting, displaying or performing Content on or through the Service Applications or transmitting or otherwise distributing Content through the use of any of the TheOverflow Service, you represent and warrant that you own the rights in such Content or are otherwise authorized to post, display, perform, transmit or distribute the Content.
11. USE OF THE THEOVERFLOW SERVICE
You will comply with all applicable laws, statutes, ordinances and regulations in your use of the TheOverflow Service. TheOverflow may immediately terminate your account, or suspend access to your account, in its sole discretion and without notice, for conduct that TheOverflow reasonably believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms of Service or any other policies or guidelines posted on or through the Service Applications, or (iii) harmful to other users, third parties, or TheOverflow’s business. Use of your account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, TheOverflow may terminate your account if you file any claim against TheOverflow, or any claim which in any way involves TheOverflow. Upon TheOverflow’s termination of your account for any of the forgoing reasons, (a) you may not establish a new account for a period of one (1) year from the date of termination, (b) TheOverflow will have no obligation to notify any third parties regarding such termination, and (c) you will be responsible for any damages that may result or arise out of termination of your account.
You agree not to:
1. upload, post, publish, distribute or disseminate, email, transmit, display on or through the Service Applications or make available through the use of any of the TheOverflow Service: (a) any Content that is fraudulent, misleading, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, profane, indecent, invasive of another’s privacy, or incites discrimination , hate or violence towards any person or group on account of their race, religion, disability, nationality or otherwise, or otherwise objectionable, including any communication that constitutes (or encourages conduct that would constitute) a criminal offense, gives rise to civil liability or otherwise violates any local, state, national or international law, regulation or standard of conduct, (b) any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), (c) any Content that infringes or misappropriates any patent, trademark, trade secret, copyright, privacy, publicity or other rights of any other person or entity, (d) any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation commercial or otherwise, (e) any material that contains any virus, Trojan horse, worm, time bomb or any other computer code, files or programs designed to damage, interfere with, intercept, misappropriate, gain control over or limit the functionality of any computer, computer network, communications device, communications system, data or personal information, (f) threaten, abuse, disrupt, stalk or otherwise violate the legal rights (including rights of privacy and publicity) of others, (g) collect or store personal information about others, including email addresses, log-in details or other credentials; (h) advertise or offer to buy or sell goods or services for any commercial purpose, unless such communication facility specifically allows such messages; (i) mpersonate any person or entity for the purpose of misleading others; (j) violate any applicable laws or regulations; (k) use The Overflow in any manner that could damage, disable, overburden or impair The Overflow or interfere with any other party’s use and enjoyment of The Overflow; (l) post, publish, distribute or disseminate material or information that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information or confidential information disclosed in the course of employment or under a confidentiality agreement);
• attempt to gain unauthorised access to any of [the Services], other accounts, computer systems or networks connected to [the Services] through hacking, password mining or any other means.
• use any of the TheOverflow Service to (1) harm minors in any way, (2) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, (3) for any commercial purpose or the benefit of any third party or any manner not permitted by these Terms of Service, (4) intentionally or unintentionally violate any applicable local, state, national or international law, or any rule or regulation having the force of law, (5) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization, or (6) stalk or otherwise harass another
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content displayed on or through the Service Applications or transmitted through the use of any of the TheOverflow Service;
• remove any proprietary notices from the Service Applications;
• cause, permit or authorize the modification, creation of derivative works, or translation of any Content displayed on or through the Service Applications or transmitted through the use of any of the TheOverflow Service without TheOverflow’s prior written consent;
• attempt to hack the Service Applications, or to defeat or overcome any encryption technology or security measures implemented by TheOverflow with respect any of the TheOverflow Service and/or data transmitted, processed or stored by TheOverflow;
• attempt to harvest or collect any information about or regarding other users of any of the TheOverflow Service, including, but not limited to any personal data or information;
• engage in web scraping, database scraping or any other activity for the purpose of obtaining Content, data or other information from the Service Applications for any purpose other than the use of the TheOverflow Service as expressly permitted by these Terms of Service;
• perform any meta-search or automated queries of the Service Applications or of any of the Content;
• interfere with or disrupt any of the TheOverflow Service or servers or networks connected to or operated with any of the TheOverflow Service, or disobey any requirements, procedures, policies or regulations of networks connected to or operated with any of the TheOverflow Service; and/or
• engage in any action or activity in violation of the Abuse Policy, or any other terms, conditions and policies, set forth in these Terms of Service.
12.1 USE OF CONTENT. You acknowledge that all information, text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials (“the Content”), whether posted publicly or transmitted privately, are the sole responsibility of the person from whom such Content originated. We do not control or endorse the Content and cannot guarantee the accuracy, integrity or quality of such Content and you acknowledge that by using [the Services] you may be exposed to Content that is offensive and/or indecent. [We] will not be liable in any way for any Content or for any loss or damage of any kind resulting from the use of any Content transmitted via [the Services] and you agree to bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content.
12.2 Digital Rights Management. Most content sold on The Overflow is DRM-free. However, you understand that some of the Content includes a security framework using technology that protects digital information and limits your usage of the Content to certain usage rules established by The Overflow and our licensors (“Usage Rules”). You agree to comply with such Usage Rules, as further outlined below, and you agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components related to such Usage Rules for any reason whatsoever.
12.3 PREVIEWS. A “Preview” is a portion of a song or video, or in some cases, an entire song or video that you can play (and, if applicable, view) directly from and while you are logged on to the Service on a promotional basis at no cost to you. You may play as many Previews as you like. You may not attempt (or support others’ attempts) to capture, copy, or download a Preview.
12.4 Content Usage Rules.
12.4.1 You are authorised to use the Content only for personal, non-commercial use, and not for redistribution, transfer, assignment or sublicense, to the extent permitted by law.
12.4.2 You may not use Content as a musical “ringer” in connection with mobile phone calls.
12.4.3 You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or used to administer the Usage Rules, or interfere with, remove or alter any rights management information on the Content.
12.4.4 The delivery of Content does not transfer to you any commercial or promotional use rights in same.
12.4.5 Content in the MP3 or AAC format does not contain security technology that limits your usage of such Content and you may use them as reasonably necessary for personal, non-commercial use.
12.5 You agree that your registered account to The Overflow constitutes your acceptance of and agreement to use such Content solely in accordance with the Usage Rules, and that any other use of the Content may constitute a copyright infringement. Any security technology, if applicable, is an inseparable part of the Content. The Usage Rules shall govern your rights with respect to the Content. The Overflow reserves the right to modify the Usage Rules at any time.
12.6 Explicit content
TheOverflow Service goes to great lengths to maintain a Christian and Gospel music only catalog. This notwithstanding, certain music albums available on or through the TheOverflow Service may have missed our exclusion process and be subject to the Recording Industry Association of America (“RIAA”) “Parental Advisory Label” (as defined at http://www.riaa.com/toolsforparents.php?content_selector=parental_advisory), or the relevant jurisdictional equivalent. The RIAA assigns the Parental Advisory Label to an entire album and not the individual songs on the album. All individual songs from such labeled albums will be labeled as “explicit” within the TheOverflow Service (“Explicit Tracks”). If any of your searches on the TheOverflow Service return Explicit Tracks, they will be identified as such in the search results area. Note that Tracks that were recorded prior to 1985 are not subject to the RIAA Parental Advisory Label. TheOverflow will have no liability or responsibility to you for any content or materials, including Explicit Tracks, that may be available in connection with the TheOverflow Service that you might find to be offensive, indecent or objectionable. Should you find any such material and believe TheOverflow should remove it, please contact us at [email protected]
12.7 MONITORING We have no obligation to monitor The Overflow but shall be entitled to review materials posted to a communications facility and, at our sole discretion, to remove any material that breaches these terms and conditions or is otherwise objectionable.
13. ADVERTISEMENTS; LINKS TO OTHER WEBSITES
The Service Applications may contain third party advertisements or promotions and/or links to other websites and applications (“Third Party Sites”). TheOverflow provides these advertisements, promotions and links as part of some of its subscription tiers (in applicable territories) or as a convenience to you and the inclusion or display of any advertisement, promotion or link does not constitute or imply any affiliation, endorsement or sponsorship by TheOverflow of any given advertiser or its products, or of any given Third Party Site or of any given content contained in the advertisement, promotion or Third Party Site. TheOverflow makes no guarantees about the accuracy, content or quality of the information, or of the products and services, provided by such advertisements, promotions or Third Party Sites and TheOverflow assumes no responsibility for misleading, objectionable or inaccurate information, or for the products and services that may be obtained from or through such advertisements, promotions or Third Party Sites. Your interaction or participation with any advertisement or promotion (or the third party sponsor thereof) or with any Third Party Site, whether on or through the Service Applications or any Third Party Sites, are solely between you and such third party and your interaction or participation is subject to the terms and conditions associated with that advertisement, promotion or Third Party Site. You acknowledge and agree that TheOverflow is not responsible or liable in any way, including for any loss or damage you incur, (i) as a result of your interaction or participation with any advertisement or promotion (or the third party sponsor thereof), whether on or through the Service Applications or any Third Party Sites, (ii) as a result of your activity or interaction on or with any Third Party Site, (iii) for any products or services, or your use thereof, that are the subject of any advertising or promotion, or (iv) for any content, advertising, products or services, or your use thereof, on or made available from any Third Party Sites.
14. WARRANTY DISCLAIMERS
You understand that the processing and transmission of communications relating to the use of any of the TheOverflow Service may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that TheOverflow will not be responsible or liable for the timeliness, deletion, mis-delivery or failure to store any data, information or content that you provide for display on or through the Service Applications or for transmission through the use of any of the TheOverflow Service. Please read the following – it is an important disclaimer:
The Service Applications, the TheOverflow Service and all information and materials provided through the same are provided on an “as is” and “as available” basis without any warranty or condition, express or implied. To the maximum extent permissible under applicable law, TheOverflow, and each of its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, specifically disclaim all implied warranties including, without limitation, implied warranties of title, quality, performance, merchantability, fitness for a particular purpose and non-infringement. Further, no warranties will be implied by any course of dealing or course of performance.
TheOverflow makes no representation or warranty that (i) the Service Applications or the TheOverflow Service will meet your expectations or requirements, (ii) the Service Applications or the TheOverflow Service will be available, uninterrupted, timely, secure, accurate, complete or error-free, (iii) any results or information that may be obtained from the use of the Service Applications or the TheOverflow Service will be accurate, timely, complete or reliable, (iv) any errors or defects in the Service Applications or the TheOverflow Service will be corrected, or (v) the Service Applications and the TheOverflow Service and/or the servers that make the Service Applications and the TheOverflow Service available are free of viruses, clocks, timers, counters, worms, software locks, Trojan horses, trap doors, time bombs or any other harmful codes, instructions, programs or components. Operation of the Service Applications and the TheOverflow Service may be interfered with by numerous factors outside of TheOverflow’s control including, but not limited to, telecommunications network disruptions. TheOverflow is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Service Applications or the TheOverflow Service. You acknowledge that the entire risk arising out of the use, inability to use or performance of any of the TheOverflow Service remains with you to the maximum extent permissible under law. For the avoidance of doubt, no provider of a mobile application platform has any warranty obligation, or any obligation to provide maintenance and support services, with respect to any mobile Service Application or the TheOverflow Service. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. You acknowledge and agree that your sole remedy for any problems or dissatisfaction with any of the TheOverflow Service is to terminate your account and discontinue use of the Service Applications and the TheOverflow Service.
15. LIMITATION OF LIABILITY
Please read the following – it is an important limitation of TheOverflow’s liability:
To the maximum extent permissible under applicable law, in no event will TheOverflow or its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, be liable with respect to the Service Applications, your use of the Service Applications or any other materials or services provided to you by TheOverflow or any other subject matter of these Terms of Service, whether based on contract, tort, strict liability or other theory, for (i) any lost or corrupted data, lost profits, loss or damage to any computer, mobile phone or other device or any special, incidental, indirect or consequential damages, even if such parties have been advised of the possibility of such damages or if such damages were foreseeable, or (ii) the cost of procuring substitute goods, services or technology. To the maximum extent permissible under applicable law, the aggregate liability of TheOverflow and its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, to you or any third party in any circumstance will not exceed one hundred dollars ($100). Some jurisdictions do not allow the exclusion of incidental or consequential damages or limitation of liability, so the above exclusions and limitations may not apply to you.
For the avoidance of doubt, to the maximum extent permissible under applicable law, no provider of a mobile application platform will have any liability to you with respect to any mobile Service Application.
You agree that TheOverflow, in its sole discretion and without notice or liability to you, may terminate or suspend your use of, or access to, the Service Applications or any of the TheOverflow Service at any time if TheOverflow believes in good faith that you have violated or acted inconsistently with any provision of these Terms of Service or any applicable law, rule or regulation or that you have engaged in conduct that TheOverflow reasonably determines to be inappropriate or unacceptable. TheOverflow may in its sole discretion, and at any time, discontinue providing the TheOverflow Service, or any part thereof, on notice to you.
You agree to defend, indemnify and hold TheOverflow and its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, together with their respective affiliates, successors, assigns, employees, consultants, agents, directors, officers, members and stockholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to your actions or fault and arise out of (i) your access, use or misuse of any of the TheOverflow Service, (ii) your breach or alleged breach of these Terms of Service, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of any of the TheOverflow Service including, without limitation, infringement of anyone else’s intellectual property rights, or (iv) your use or disclosure of another person’s personal information including, without limitation, financial or credit information. Without limiting the foregoing, you acknowledge that certain countries may require you to pay a use, sales, consumption, value added or other tax in connection with your use of the TheOverflow Service. The payment of any such tax, if required, is your responsibility. The foregoing indemnity obligations will apply to any damages TheOverflow may incur in connection with your failure to pay any such tax.
18. COPYRIGHT INFRINGEMENT
TheOverflow respects the intellectual property rights of others and we ask our users to do the same. If you believe a user of the Service Applications or TheOverflow Service is infringing your copyright or the copyright of any third party, please notify TheOverflow in accordance with the following procedure: All notifications of copyright infringement must be in writing and directed to TheOverflow’s designated agent at the following mailing address, fax number or email address: If Attn: Copyright Agent c/o TheOverflow.com Ltd 874 Walker Rd, Dover,19904 [email protected]
Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (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 TheOverflow to locate the material, (iv) information reasonably sufficient to permit TheOverflow to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted; (v) a statement 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 (vi) 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 owner of the exclusive right that is allegedly infringed.
In the event of any copyright or other intellectual property infringement claim, you acknowledge and agree that as between TheOverflow and any provider of a mobile application platform, TheOverflow, and not any provider of a mobile application platform, will be solely responsible for the investigation and discharge of any such claim.
TheOverflow may modify or update these Terms of Service at any time without notice. Any additional or different terms in these Terms of Service will be effective upon being posted on the TheOverflow Site. It is your responsibility to review these Terms of Service periodically. Your continued use of any of the TheOverflow Service following the posting of any additional or different terms in these Terms of Service constitutes your irrevocable acceptance of those additional or different terms. TheOverflow reserves the right to add, change, modify, suspend or discontinue all or any of the TheOverflow Service, in its sole discretion, at any time. Unless expressly stated otherwise, the use of any new or existing TheOverflow Service, including the availability of services or products through the Service Applications, will be subject to these Terms of Service. In addition, TheOverflow may also impose limits on any of the TheOverflow Service or restrict your access to portions or all of the Service Applications in its sole discretion without notice or liability. TheOverflow reserves the right to refuse to provide you with access to any of the TheOverflow Service or to allow you to create a user account for any reason.
20. EQUITABLE REMEDIES
You hereby agree that TheOverflow would be irreparably damaged if these Terms of Service were not specifically enforced, and therefore you agree that TheOverflow will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Service, in addition to such other remedies as TheOverflow may otherwise have available to it under applicable laws.
21. EXPORT ADMINISTRATION
You will comply fully with all relevant export laws and regulations of the territories in which the TheOverflow Service is made available, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Service Applications, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
23. GOVERNING LAW; JURISDICTION
These Terms of Service will be governed by, and will be construed under, the laws of the Canada and the laws of the Province of Ontario, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 24 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the TheOverflow Service shall be subject to the exclusive jurisdiction of the province and federal courts located in Toronto, Canada and you agree to submit to the personal jurisdiction and venue of such courts.
24. DISPUTE RESOLUTION
If you are using the TheOverflow Service in the United States, Sections 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, and 24,7 apply as follows:
Before initiating any arbitration or court proceeding, you and TheOverflow agree to first attempt to negotiate any dispute, controversy or claim related to these Terms of Service (“Claim”) (except those Claims expressly provided in Section 24.6 below) informally for at least thirty (30) days. Negotiations will begin upon written notice. TheOverflow may send its notice to your billing or other physical address (if on file with TheOverflow) and email you a copy to the email address you have provided. You will send your notice to TheOverflow, Inc., 19 Walnut Glen Place, Markham, ON L4E 5A2, ATTN: CEO.
24.2 Binding Arbitration
If the parties fail to resolve a Claim through negotiations within the above thirty (30) day period, you and TheOverflow agree that, except as provided in Section 24.6 below, all Claims will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms of Service. In the event of a conflict between the terms set forth in this Section 24and the JAMS Rules, the terms in this Section 24 will control and prevail. Except as otherwise set forth in Section 24.6, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms of Service, (i) you and TheOverflow may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND THEOVERFLOW ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
24.3 Arbitration Fees
If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. Notwithstanding anything in the clause titled “Miscellaneous” above to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration.
The arbitration will take place in your hometown area if you so notify TheOverflow in your notice of arbitration or within ten (10) days following receipt of TheOverflow’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Toronto, Canada, unless the parties agree to video, phone and/or Internet connection appearances.
You and TheOverflow agree that any arbitration will be limited to the Claim between TheOverflow and you individually. YOU AND THEOVERFLOW AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER.
24.6 Exceptions to Negotiations and Arbitration
You and TheOverflow agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or TheOverflow’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in these Terms of Service, some of these provisions may not apply to you.
You and TheOverflow agree that if any portion this “Dispute Resolution” section is found illegal or unenforceable (except any portion of Section 24.6 above), that portion will be severed and the remainder of this section will be given full force and effect. If Section 24.6 above is found to be illegal or unenforceable then neither you nor TheOverflow will elect to arbitrate any Claim falling within that portion of Section 24.6 above found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within Toronto, Province of Ontario, Canada, and you and TheOverflow agree to submit to the personal jurisdiction of that court.
If you have any questions about these Terms of Service or your rights or TheOverflow’s obligations relating to any of the TheOverflow Service, please email us at [email protected] or you may contact us by mail at: If you are using the TheOverflow Service in the United States or Canada: TheOverflow.com Ltd 874 Walker Rd, Dover,19904.
27. ELECTRONIC COMMUNICATIONS
You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by TheOverflow to show your acceptance of the Terms of Service), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the TheOverflow Service.
© 2014 TheOverflow.com, Inc.