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Terms of Service
This is the Terms of Service (this "Agreement") for Opinity, Inc. ("Opinity"). This Agreement sets forth the terms and conditions of your use of the services of Opinity available under the domain and sub-domains of www.opinity.com (the "Web Site"). This Agreement also sets forth the general principles for the web sites of our subsidiaries and affiliates. By accessing or using the Web Site or downloading materials from the Web Site, you agree to be legally bound by the terms and conditions of this Agreement and our Privacy Policy without any modification. If you do not agree to be bound by this Agreement, do not use the Web Site or access our services. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
You must read, agree with and accept all of the terms and conditions contained in this Agreement and in our Privacy Policy before you may register as a user of the Web Site. You should also access and read the information contained in the other pages and web sites referred to in this document, as they may contain further terms and conditions that apply to you as a user of Opinity's services. Note that underlined words and phrases are links to these pages and web sites.
Eligible Users
The Web Site, and the services offered by Opinity, are available only to and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Web Site and Opinity's services are not available to persons under the age of 18. If you are under the age of 18, you can use the Web Site only in conjunction with and under the supervision of your parents or legal guardians. If you are under the age of 18, by accessing the Web Site you represent that your parents have agreed to the terms and conditions of this Agreement. We request that you not use our Web Site if you do not qualify.
Termination; Breach
Without limiting Opinity's other remedies, Opinity may, in its sole and absolute discretion, limit your activity on the Web Site, immediately remove your postings, warn our Web Site community of your actions, issue a warning to you, temporarily or indefinitely suspend or terminate your account and refuse to provide our services to you, including if you breach this Agreement or the documents incorporated by reference, if we cannot verify or authenticate any information you provide to us or if we believe that your actions may cause financial or legal liability for you, us or others.
Information You Provide to the Web Site
Any Content (as defined herein) or other information submitted or posted to the Web Site by users or other third parties shall be treated by Opinity as non-confidential and non-proprietary, and subject to disclosure and usage for any purpose as we deem fit in our sole and absolute discretion. Notwithstanding the foregoing, Opinity shall maintain and use personal information of users in accordance with its Privacy Policy. You are solely responsible for any comments, remarks or other information and content ("Content") you provide, and Opinity acts as a passive conduit for your online distribution and publication of your information. By submitting any comments, remarks or other information, you represent that you have all rights necessary to submit such comments, remarks or other information. Your information and your activities on the Web Site shall not be false, inaccurate or misleading, be fraudulent, infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, violate any law, statute, ordinance or regulation, be defamatory, libelous, unlawfully threatening or unlawfully hassling, be obscene or contain child pornography, contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers. In addition to the above, you agree that you will not take any other actions that may undermine the integrity of our services. Solely to enable Opinity to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in such information, in any media now known or not currently known, with respect to such information. Specifically, with regard to any passwords you provide us in order to allow us to verify and authenticate your accounts from the web sites of third parties so that we may provide our services to you, Opinity agrees that it shall use such passwords only for verification and authentication of your accounts, and will immediately terminate all records of such passwords following verification and authentication.
Removal of Postings
You understand and agree that Opinity has the right, but not the obligation, to remove any content (including yours) in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
Without limiting the foregoing, and subject to, and without waiver of, any of the legal disclaimers and limitations on any liability set forth elsewhere in this Agreement, Opinity, in the situations outlined below, may at its absolute discretion remove Content provided by users or other third parties to the extent:
(1) The posting contains profanity, vulgarity or obscenity;
(2) The posting contains adult material, including but not limited to graphic images, written images or links thereto;
(3) The posting contains personal identifying information such as names and phone numbers of other users;
(4) The posting is not the type of posting for which the Web Site is intended, which is as a forum for rating other internet users;
(5) The user who authored the posting submitted false contact information during the registration process and Opinity is unable to contact the user;
(6) The posting references an user who does not exist;
(7) There are multiple copies of the same posting;
(8) The posting was made by an immediate family member of the user being reviewed;
(9) The posting contains email communications between any parties;
(10) Opinity is presented with a valid court order from a court of competent jurisdiction ordering the removal of the posting;
(11) Opinity is presented with a valid court order from a court of competent jurisdiction finding that the posting is libelous, defamatory, slanderous or otherwise illegal;
(12) Opinity is presented with a settlement agreement, resolving a dispute between the user authoring the posting and any third party(ies) complaining about the posting, mandating that the posting be removed; or
(13) A user complains about and counters the information contained in a posting, and Opinity believes there is adequate evidence that such posting is inaccurate, false or fraudulent.
If you believe that a user has posted material which meets one of the above conditions, please contact us by email or write to us at the address provided below.
Complaints About User Postings
The Web Site is intended as a forum for expression, and users are responsible for the Content they provide. Opinity does not monitor, and is not responsible, for the Content in user postings. However, as set forth above under "Removal of Postings," if you believe that a user has posted material which meets one of those conditions, please contact us. If a user complains about and counters the information contained in a posting (condition #13 above), Opinity shall collect information from both the complaining user and the user authoring the posting. Opinity may, in its sole and absolute discretion, either remove the posting based on the information provided if Opinity believes there is adequate evidence that such posting is inaccurate, false or fraudulent. Alternatively, Opinity may allow the original posting to remain on the Web Site, but may allow the complaining user to post a response to the original posting explaining his/her/its position which will accompany the original posting.
Copyright Information
We respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that your copyright has been infringed on the Web Site, please read the following information for filing or responding to a notice of infringement.
Notification
To file a copyright notice with us, please send a written communication by regular mail that sets forth the items specified below.
Please use the following format:
(1) Identify in sufficient detail the material that you believe has been infringed. For example, "The copyrighted work at issue is the content that appears http://www.opinity.com/tos/12345." You should also try to provide screen shots of the copyrighted work at issue.
(2) Identify the material that you claim is infringing the material listed in item #1 above.
(3) Provide information reasonably sufficient to permit us to contact you (e mail address is preferred).
(4) Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material.
(5) Include the following statement: "I have a good faith belief that use of the copyrighted material described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law."
(6) Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
(7) Sign the paper and send it to our Copyright Agent.
Counter-notification
The user(s) who posted the content may make a counter notification. When we receive a counter notification, we will typically forward a copy to the person who filed the original notification and reinstate the material in question.
To file a counter notification with us, you should provide a written communication by regular mail that sets forth the items specified below.
(1) Identify the specific URLs and provide screen shots of material that we have removed or to which we have disabled access.
(2) Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Santa Clara County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification to us of the infringement or an agent of such person.
(3) Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
(4) Sign the paper.
(5) Sign the paper and send it to our Copyright Agent.
Our Copyright Agent may be reached as follows:
By mail:
Copyright Agent
Opinity, Inc.
2391 Zanker Rd. Suite #380
San Jose, CA 95131
By e-mail: legal@www.opinity.com
Copyright and Trademark Notices
All contents of this website are: ? 2005. Opinity, Inc., 2391 Zanker Rd. Suite #380, San Jose, CA 95131. All rights reserved. Opinity and the Opinity logo are trademarks of Opinity, Inc. Other product, service and company names mentioned on the Web Site or in connection with our services may be the trademarks of their respective owners. Unauthorized use of the Web Site or our services and/or the materials contained on the Web Site may violate applicable copyright, trademark or other intellectual property laws or other laws.
No Warranty
THE WEB SITE (INCLUDING ANY INFORMATION ON IT) AND THE SERVICES OFFERED BY OPINITY ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OPINITY SHALL NOT BE RESPONSIBLE FOR ANY ERRORS, OMISSIONS OR TECHNICAL INACCURACIES IN THE WEB SITE. We do not guarantee continuous, uninterrupted or secure access to Opinity services, and operation of the Web Site may be stopped due to factors outside our control. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
Opinity is constantly improving its products and services and reserves the right to make such improvements or changes to the Web Site, the materials, products or services posted in the Web Site without prior notice as it deems necessary.
As a convenience to you, Opinity may provide links to web sites operated by others. Opinity makes no representations about web sites accessed from the Web Site, which are not maintained, controlled or created by Opinity. Opinity does not endorse any linked web sites or the information appearing thereon. Links do not imply that Opinity is affiliated with or associated with such linked web sites, their owners or operators, or any related companies.
Limitation of Liability
The Web Site acts as a venue to allow you and others to post and review comments about other internet users. Opinity is not involved in the actual reviewing of users; users review each other using the Web Site. Please be advised that neither Opinity, nor any affiliated persons or entities, is in a position to investigate, censor or otherwise ensure the quality, legality, truth or accuracy of any Content posted or generated by users of the Web Site, and therefore is not responsible in any way for such Content provided by users or other third parties. To the contrary, many of the users are of unknown identity and have no relationship or privity with Opinity. While we use many techniques to verify the accuracy of the information our users provide us when they register on the Web Site, because user verification on the Internet is difficult, Opinity cannot and does not confirm each user's purported identity. Therefore, Opinity expressly disclaims, on behalf of itself and any affiliated persons or entities, any warranty, guarantee or responsibility with respect to the genuineness, completeness or lawfulness otherwise of any Content provided. Opinity disclaims, on behalf of itself and any related persons or entities, any warranty, guarantee or responsibility with respect to any of your Content or other information submitted or posted, including but not limited to any passwords that you provide. Opinity further expressly disclaims, on behalf of itself and any related persons or entities, any warranty, guarantee or responsibility with respect to such user or third party Content as related to, among other things, intellectual property rights, copyright or trademark infringement, defamation, libel, slander, invasion of privacy or criminal or tortious activities otherwise. Each of the Web Site's users and third parties acknowledge, by using the Web Site, that he/she/it is fully responsible and liable for his/her/its Content, and neither Opinity nor any affiliated persons or entities is the guarantor or indemnitor of any such party. IN NO EVENT SHALL OPINITY, OUR SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEB SITE, OUR SERVICES, ANY CONTENT OR THIS AGREEMENT, HOWEVER ARISING, INCLUDING WITHOUT LIMITATION NEGLIGENCE. OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU HAVE PAID US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY AND (B) $100. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you if you reside in one of those states.
Because the Web Site is a venue, in the event that you have a dispute with one or more users of the Web Site, you release Opinity and its officers, directors, employees, agents, subsidiaries, affiliates and joint ventures from claims, demands and damages, actual and consequential, or every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in connection with such disputes. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California (which states "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.") or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation the states of Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits.
Indemnity
You agree to indemnify and hold harmless Opinity, its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), and the officers, directors, employees, agents and representatives of any of them from any an all claims, demands, actions, causes of action, suits, sums of money, judgments, controversies and liabilities whatsoever, at law or in equity, including reasonable attorneys' fees, arising from or in any way resulting from your use of the Web Site or our services.
No Agency
You and Opinity are independent contractors, and no agency, partnership, joint venture, employee/employer or franchiser/franchisee relationship shall be deemed to exist, or is intended to exist by this Agreement.
Resolution of Disputes
You agree that in the event a dispute arises concerning your use of the Web Site or any other program or service offered by Opinity, that such dispute shall be resolved by arbitration. Unless the parties specifically agree otherwise in writing, such arbitration shall be binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association or JAMS. Further, you agree that any such arbitration shall be settled on an individual basis, and unless the parties agree otherwise in writing shall not be consolidated in any arbitration or suit with any claim or controversy of another party. You agree that all arbitration proceedings will be conducted in Santa Clara County, California. You further agree that any interim or preliminary relief sought shall be brought in a court of competent jurisdiction in Santa Clara County, California.
Governing Law
You agree that this Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents.
Survival
In the event one part of this Agreement is found to be invalid or unenforceable, such provision shall be struck and the other provisions shall remain valid and enforceable.
Waiver
Opinity's failure to act with regard to a breach by you or others of this Agreement does not waive our right to act with respect to subsequent or similar breaches.
Amendment
Opinity may amend this Agreement at any time by posting the amended terms on the Web Site. All amended terms shall automatically be effective five days after they are initially posted on the Web Site. This Agreement is effective on January 1, 2005 for all Opinity Web Site users.
Contact Us
You can direct any questions concerning this Agreement to us at the following addresses:
Via E-mail: legal@www.opinity.com
Via U.S. or International Mail:
Opinity, Inc.
2391 Zanker Rd. Suite #380
San Jose, CA 95131 |
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Policy
