10Plums Platform Terms of Service
December 1, 2008
0. Introduction; Your Agreement to these Terms of Service.
Welcome to the 10Plums, LLC. ("10Plums") website.
Please read carefully the following Terms of Service as they are intended for the mutual benefit of both 10Plums and you and govern the terms of your use of the 10Plums Platform.
By registering for, accessing, browsing, downloading or using the 10Plums Platform, you agree to be bound by the following terms and conditions, including any additional guidelines and future modifications (collectively, the "Terms"). If at any time you do not agree to these Terms, please terminate your use of the 10Plums Platform.
1. Eligibility.
The 10Plums Platform is not available to persons under the age of 18 or to any users previously suspended or removed from the 10Plums Platform by 10Plums. By checking the "I have read and agree to the terms of service" box or by otherwise using the 10Plums Platform, you represent that you are at least 18 years of age and have not been previously suspended or removed from the 10Plums Platform.
If you are using or opening an account on the 10Plums Platform on behalf of a company, entity, or organization (collectively, a "Subscribing Organization") then you represent and warrant that you: are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound to these Terms on behalf of such Subscribing Organization.
2. Privacy.
Your privacy is important to 10Plums. 10Plums's Privacy Notice is hereby incorporated into these Terms by reference: please read this notice carefully for information relating to 10Plums's collection, use, and disclosure of your personal information.
3. Individual Features and Services.
When using the 10Plums Platform, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the "Guidelines"). All such Guidelines are hereby incorporated by reference into these Terms.
4. Modification of these Terms.
10Plums reserves the right, at our discretion, to modify these Terms at any time. Please check these Terms and any Guidelines periodically for changes. Your continued use of the 10Plums Platform after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the 10Plums Platform.
5. Digital Millennium Copyright Act.
It is 10Plums's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. 10Plums will promptly terminate without notice any User's access to the 10Plums Platform if that User is determined by 10Plums to be a "repeat infringer." A repeat infringer is a User who has been notified by 10Plums of infringing activity violations more than twice and/or who has had an Contributor Submission or any other user-submitted content removed from the 10Plums Platform more than twice. In addition, 10Plums accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. Contributor Submissions License Grant; Representations and Warranties.
6.1 License Grant to You to Upload and Download
Subject to your compliance with this Terms of Service, 10Plums hereby grants you:
(1) a personal, limited, non-exclusive, non-transferable, freely revocable license to use the 10Plums Platform for the uploading and distributing of authorized digital content, including text, music, pictures or graphics ("Contributor Submissions"). Content is uploaded at your own risk. 10Plums cannot guarantee that there will be no unauthorized copying or distribution of Contributor Submissions nor will 10Plums be liable for any copying or usage of the Contributor Submissions not authorized by 10Plums; and
(2) a personal, limited, non-exclusive, non-transferable, freely revocable license to download Contributor Submissions solely through the 10Plums Platform subject to the license under which such Contributor Submissions are distributed.
6.2 Your License Grant to 10Plums.
You shall retain all of your ownership rights in your Contributor Submissions. However, by distributing or disseminating your Contributor Submissions through the 10Plums Platform, you hereby grant 10Plums and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your Contributor Submissions in connection with the 10Plums Platform and 10Plums’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the 10Plums Platform (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant 10Plums and its affiliates and sublicensees the right to use the name that you submit in connection with such Contributor Submission if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Contributor Submissions.
6.3 Your License Grant to Other 10Plums Users.
By distributing or disseminating Contributor Submissions through the 10Plums Platform, you hereby grant to each user of the 10Plums Platform a non-exclusive license to access your Contributor Submissions through the 10Plums Platform, and to use, reproduce, distribute, prepare derivative works of, display, and perform such Contributor Submissions as permitted by the functionality of the 10Plums Platform and these Terms. The foregoing license granted by you terminates as to a specific Contributor Submisssion once you remove or delete such Contributor Submission from the 10Plums Platform.
6.4 Contributor Submissions Representations and Warranties.
You are solely responsible for your Contributor Submissions and the consequences of posting or publishing them. By uploading and publishing your Contributor Submissions, you affirm, represent, and warrant that:
(1) you are the creator and owner of your Contributor Submissions which are your original, unpublished work, and for any pre-existing materials incorporated therein you have obtained all necessary licenses, rights, consents, and permissions to use and to authorize 10Plums to exercise the licenses granted by you in this Section 6;
(2) your Contributor Submissions do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation; and
(3) your Contributor Submissions do not contain any viruses, adware, spyware, worms, or other malicious code.
6.5 Contributor Submissions Disclaimer.
You understand that when using the 10Plums Platform you will be exposed to Contributor Submissions from a variety of sources, and that 10Plums is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Contributor Submissions. You further understand and acknowledge that you may be exposed to Contributor Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against 10Plums with respect thereto. 10Plums does not endorse any Contributor Submissions or any opinion, recommendation or advice expressed therein, and 10Plums expressly disclaims any and all liability in connection with Contributor Submissions. If notified by a User or a content owner of a Contributor Submission that allegedly does not conform to this Terms of Service, 10Plums may investigate the allegation and determine in its sole discretion whether to remove the Contributor Submission, which it reserves the right to do at any time and without notice.
7. Prohibited Conduct.
BY USING THE 10PLUMS PLATFORM YOU AGREE NOT TO:
7.1 use the 10Plums Platform for any purposes other than to access services as such services are offered by 10Plums;
7.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 12, below);
7.3 post, upload, or distribute any defamatory, libelous, or knowingly inaccurate Contributor Submissions or other content;
7.4 post, upload, or distribute any Contributor Submissions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
7.5 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the 10Plums Platform accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the 10Plums Platform, or perform any other similar fraudulent activity;
7.6 except with respect to your own Contributor Submissions, delete the copyright or other proprietary rights notices on any Contributor Submissions;
7.7 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the 10Plums Platform. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
7.8 use the 10Plums Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
7.9 defame, harass, abuse, threaten or defraud Users of the 10Plums Platform, or collect, or attempt to collect, personal information about Users or third parties without their consent;
7.10 except for with respect to your own Contributor Submissions and except unless otherwise agreed to in a writing signed by 10Plums, use the content on the 10Plums Platform for any commercial use (it being understood that the content available on the 10Plums Platform is for personal, non-commercial use only);
7.11 use the 10Plums Platform if you are under the age of eighteen (18) years old or if you have been previously suspended or removed from the 10Plums Platform;
7.12 remove, circumvent, disable, damage or otherwise interfere with security-related features of the 10Plums Platform, features that prevent or restrict use or copying of any content accessible through the 10Plums Platform, or features that enforce limitations on the use of the 10Plums Platform;
7.13 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the 10Plums Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
7.14 except for with respect to your own Contributor Submissions, modify, adapt, translate or create derivative works based upon the 10Plums Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or
7.15 intentionally interfere with or damage operation of the 10Plums Platform or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
10Plums reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the 10Plums Platform, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
8. Account
When you use the 10Plums Platform to upload and/or download content, services, or information from 10Plums, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to 10Plums on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify 10Plums. You may be liable for the losses incurred by 10Plums or others due to any unauthorized use of your 10Plums Platform account.
9. Third-Party Sites, Products and Services; Links.
The 10Plums Platform may include links or references to other web sites or services solely as a convenience to Users ("Reference Sites"). 10Plums does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the 10Plums Platform are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
10. Termination; Terms of Service Violations.
10.1 10Plums.
You agree that 10Plums, in its sole discretion, for any or no reason, without notice and without penalty, may terminate any account (or any part thereof) you may have with 10Plums or your use of the 10Plums Platform and remove and discard all or any part of your account, User profile, and any Contributor Submission, at any time. 10Plums may also in its sole discretion and at any time discontinue providing access to the 10Plums Platform, or any part thereof, with or without notice. You agree that any termination of your access to the 10Plums Platform or any account you may have or portion thereof may be effected without prior notice, and you agree that 10Plums will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies 10Plums may have at law or in equity. As discussed herein, 10Plums does not permit copyright infringing activities on the 10Plums Platform, and will terminate access to the 10Plums Platform, and remove all Contributor Submissions or other content submitted by any Users who are found to be repeat infringers. Upon termination for any reason, you agree to immediately stop using the 10Plums Platform.
10.2 You.
Your only remedy with respect to any dissatisfaction with (i) the 10Plums Platform, (ii) any term of this Terms of Service, (iii) any policy or practice of 10Plums in operating the 10Plums Platform, or (iv) any content or information transmitted through the 10Plums Platform, is to terminate this Terms of Service and your account. You may terminate this Terms of Service at any time by discontinuing use of any and all parts of the 10Plums Platform.
11. Ownership; Proprietary Rights.
The 10Plums Platform is owned and operated by 10Plums. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the 10Plums Platform provided by 10Plums (the "Materials") are protected by applicable laws. Except for any information provided in connection with Assignments that are provided and owned by Assigning Companies, all Materials contained on the 10Plums Platform are the property of 10Plums or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to 10Plums or its affiliates and/or third-party licensors. Except as expressly authorized by 10Plums, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. 10Plums reserves all rights not expressly granted in this Terms of Service.
12. Indemnification.
You agree to indemnify, save, and hold 10Plums, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, licensees, Assigning Companies and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of: (i) your use or misuse of the 10Plums Platform; (ii) any violation by you of these Terms; (iii) any claims, liabilities, or expenses relating to compensation, tax, insurance, or benefit matters; and (iv) any breach of the representations, warranties, and covenants made by you herein or any third-party claim inconsistent with any of the foregoing. 10Plums reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify 10Plums, and you agree to cooperate with 10Plums's defense of these claims. 10Plums will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
13. Disclaimers; No Warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, 10PLUMS, AND ITS AFFILIATES, PARTNERS, ASSIGNING COMPANIES, AND SUPPLIERS ("10PLUMS PARTIES") DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 10PLUMS OR THROUGH THE 10PLUMS PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEGE THAT AS USED IN THIS SECTION 13, THE TERM 10PLUMS INCLUDES THE 10PLUMS PARTIES’ OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS. YOU EXPRESSLY AGREE THAT THE USE OF THE 10PLUMS PLATFORM IS AT YOUR SOLE RISK. THE 10PLUMS PLATFORM AND ANY DATA, INFORMATION, CONTRIBUTOR SUBMISSIONS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE 10PLUMS PLATFORM ("10PLUMS OFFERINGS") ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. NO WARANTY IS MADE THAT THE 10PLUMS OFFERINGSWILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND NO WARRANTY IS MADE THAT ANY OF THE FOREGOING WILL BE CORRECTED, OR IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
14. Limitation of Liability and Damages.
14.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE 10PLUMS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS, THE 10PLUMS OFFERINGS, THE CONTRIBUTOR SUBMISSIONS, OR ANY OTHER INTERACTIONS WITH 10PLUMS, EVEN IF 10PLUMS OR AN 10PLUMS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages.
IN NO EVENT WILL ANY OF THE 10PLUMS PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE 10PLUMS PLATFORM, YOUR CONTRIBUTOR SUBMISSIONS OR YOUR INTERACTION WITH OTHER 10PLUMS PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNTS PAYABLE TO YOU, IF ANY FOR ACCEPTED CONTRIBUTOR SUBMISSIONS, OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
15. Limitations by Applicable Law; Basis of the Bargain
15.1 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
15.2 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT 10PLUMS HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND 10PLUMS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND 10PLUMS. 10PLUMS WOULD NOT BE ABLE TO PROVIDE THE 10PLUMS PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
16. United States Export Controls.
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under this Terms of Service are contingent on your compliance with this provision.
17. Miscellaneous.
17.1 Notice.
10Plums may provide you with notices, including those regarding changes to 10Plums's terms and conditions, by email, regular mail or postings on the 10Plums Platform. Notice will be deemed given twenty-four hours after email is sent, unless 10Plums is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the 10Plums Platform. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the 10Plums Platform is deemed given 30 days following the initial posting.
17.2 Waiver.
The failure of 10Plums to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by 10Plums.
17.3 Governing Law; Jurisdiction
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these Terms or 10Plums will be filed only in the state or federal courts in and for Santa Clara County, California, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
17.4 Severability.
If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
17.5 Assignment.
These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by 10Plums without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
17.6 Survival.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 5, 6.2, 6.3, 6.4, 6.5, and 7-17.
17.7 Headings.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
17.8 Entire Agreement.
This is the entire agreement between you and 10Plums relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by 10Plums as set forth in Section 4 above.
17.9 Claims.
YOU AND 10PLUMS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE 10PLUMS PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17.10 Disclosures.
The services are offered by 10Plums, Inc., located at: 137 Duncan St, San Francisco, CA 94110 and email: feedback@10Plums.com. If you are a California resident, you may have the same information emailed to you by sending a request for this information to the foregoing physical or email address.