TERMS AND CONDITIONS OF USE FOR SEARCH PROTECTION APPLICATION SUPPLIED BY SPIGOT, INC. FOR BITTORRENT, INC.
[The above is a summary of what the Search Protection does or may do and is not contractual]
TERMS AND CONDITIONS OF USE FOR SEARCH PROTECTION APPLICATION SUPPLIED BY SPIGOT, INC.
These Terms and Conditions of Use ("Terms") apply to the Search Protection application for Windows delivered to you by or on behalf of BitTorrent, Inc., which may change your default home page, start page, and/or search engine (the " SearchProtection "). These Terms are independent of any other application(s) you may be installing or using concurrently. The SearchProtection is provided and maintained by Spigot, Inc., which may be referred to herein as "Spigot," "We," "Us," or "Our" whether in uppercase, lowercase, or a combination. The Terms will also be applicable to additional applications, browsers extensions, or plug-ins, as may be delivered to you by or on behalf of BitTorrent, Inc. that are provided and maintained by Us. In the instance of the availability of any applications, additional browser extensions, or plug-ins, before it is or they are installed or added by you BitTorrent or We will give you notice of the opportunity to install or add it or them, and give you the opportunity to agree and accept and install or add, or decline to install or add, it or them. Agreement may be by default. Because there may be more than one applications covered by the Terms Policy the SearchProtection and addition applications may be referred to herein collectively and individually, as " SearchProtection." Installation or Use of any of the SearchProtection and their features requires that you agree to the Terms. You agree to be legally bound by these Terms by clicking the "Next," "Run," "Install," "Accept,", "Accept and Install" or "Yes" button provided. These Terms are a legal contract between Us and You, an individual user of at least 18 years of age, or if You are using the SearchProtection on behalf of any entity -- including a company, organization, or trust, no matter the legal form of the entity -- ("entity"), then You represent and warrant that You are an authorized representative of that entity with the authority to bind such entity to the Terms, and agree to be bound by the Terms on behalf of such entity ("You," "User," or, collectively, "users," whether in uppercase, lowercase, or a combination).
If You are under the age of 18 Your parent or legal guardian must enter into this agreement, each amendment, on Your behalf. If You are under the age of 18
You affirm that by Your continued or future use of any SearchProtection Your parent or legal guardian has first agreed to the Terms, including each
amendment, on Your behalf.
If You do not agree to or with any and each and every of the terms or conditions in these Terms, do not install or use the SearchProtection. Your use of the SearchProtection is deemed to be Your agreement to abide and be bound by each of the Terms set forth herein, and each amendment as and when made and effective. You acknowledge that You have read and understood, and agree to be bound by, the Terms (and conditions).
SearchProtection is not available to persons under the age of 13. By downloading, installing, accessing, or otherwise using the SearchProtection You
represent that You are at least 13 years of age.
2. MODIFICATION OF TERMS
We may make changes, modifications, and amendments to the Terms at any time.
Because of the rapidly evolving nature of the Internet, computers, mobile technologies, and other technologies, in our attempts to make our user experience better, and for other aesthetic and business reasons, We may change, update, amend, and modify the Terms from time to time. The latest Terms may be posted or be available through http://bittorrent.downloadnetworkhost.com/terms.html, and You agree that You should always review them prior to using the SearchProtection so that You may always be aware of what has changed, if anything. If any modification is unacceptable to You, You will cease using the SearchProtection right away. If You do not cease using the SearchProtection You will be conclusively deemed to have accepted the change(s) and amendments. Except as stated elsewhere, all amended Terms will automatically be effective as soon as they are initially posted by Us, except if We state in writing that We are giving advance notice of any amended term to be effective on a date in the future. Please check these Terms and any guidelines periodically for changes. Except as posted by Us, including to http://bittorrent.downloadnetworkhost.com/terms.html, the Terms will not be otherwise amended, and no terms will be waived by Us, except in a writing, hand signed by pen on paper (or as set forth below) by You and an authorized representative of Ours. For purposes of these Terms and this provision, a "writing" does not include an email message, text, chat, or the like, sent from any device existing now or later developed and a signature does not include an electronic signature.
We may provide You with notices, including those regarding changes to the Terms, by email (if you provide us with your email address) or postings on, or through http://bittorrent.downloadnetworkhost.com, or http://bittorrent.downloadnetworkhost.com/terms.html, or any Spigot Platform. If we give notice by email then notice will be deemed given twenty-four hours after the email is sent, unless We are notified that the email address is invalid, and we acknowledge such notice. Alternatively, we may, though we are not required to, give You legal notice by mail to a postal address, if provided by You. In such case, notice will be deemed given three days after the date of mailing. You agree that notice posted on or through http://bittorrent.downloadnetworkhost.com, http://bittorrent.downloadnetworkhost.com/terms.html, or any Spigot Platform is deemed given upon the initial posting, even if there is also notice given in any other way.
When You visit http://bittorrent.downloadnetworkhost.com/ or send Us e-mails, You are communicating with Us electronically. You consent to receive communications from Us electronically. We may communicate with You by e-mail, or by posting notices on http://bittorrent.downloadnetworkhost.com, or http://bittorrent.downloadnetworkhost.com/terms.html. You agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing.
4. ADDITIONAL RIGHTS YOU GRANT
By installing the SearchProtection on your computer, You expressly authorize and request Spigot and/or its SearchProtection business affiliates of partners to:
- act as Your search agent to conduct or process inquiries on Your behalf using Spigot's search engine and technologies and business partners' search engines, technologies, and sites, and collect relevant information and display information to You;
- take actions Spigot deems appropriate to provide the SearchProtection to You and to act on Your behalf in obtaining information from partners and displaying or otherwise providing that to You;
- read and interpret Your search requests and results on certain sites and use this information to conduct or process searches on Your behalf, offer alternative results and to personalize The SearchProtection for You;
- start the SearchProtection automatically when you start your computer.
- modify your Internet Explorer, Firefox, and Google Chrome browser settings for the home page, start page, and/or default search engine and address bar search to facilitate more informative responses as determined by Us, Our search partners, or the SearchProtection;
- communicate with Our servers from time to time to check for available software updates such as bug fixes, patches, enhanced functions and new versions (collectively, "Updates"). By installing the SearchProtection, you agree to allow the SearchProtection to automatically request, receive, and install Updates, without any additional notice.
5. LIMITATIONS ON YOUR USE
- Personal Use. You agree to use the SearchProtection (as well as any information provided or made available by or through the SearchProtection) only for your own personal purposes and not for the benefit of any third party or for purposes of competing with Spigot in any way.
- No Scraping or Derivative Uses. Without limitation, you will not provide or make available any such information to others and you will not scrape, compile, combine or organize (or take any action similar to the foregoing, automatically or manually, with respect to) any such information. You agree not to modify, copy, publish, license, create derivative works from or sell the SearchProtection or rent, lease, transfer or otherwise transfer rights to the SearchProtection (this also applies to information available from or through the SearchProtection), or reverse engineer the SearchProtection.
- Legal Uses. You agree not to use the SearchProtection in a manner prohibited by law or in violation of any contractual provision by which you are bound.
- Interference. You agree not to use the SearchProtection in a manner that could overburden or restrict the functions of the SearchProtection, or in any manner that could interfere with any other user's ability to use the SearchProtection.
6. INTELLECTUAL PROPERTY
Spigot™ is a trademark of Spigot. Other trademarks, names, and logos on the SearchProtection or a Spigot site are the property of their respective owners. The trademarks, logos, and service marks displayed on the SearchProtection or a Spigot site (collectively the "Trademarks") are the registered and unregistered trademarks of Spigot, its licensors, suppliers, and others. The Trademarks owned by Spigot, whether registered or unregistered, may not be used in connection with any product or service that is not Spigot's in any manner that may cause confusion with or to consumers or customers, or in any manner that disparages Spigot or blurs, tarnishes, or dilutes the Trademarks or Spigot. Nothing contained on the SearchProtection or a Spigot site, communication, or herein should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right to use any Trademark without the express written permission of Spigot, its licensors, suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Spigot may aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings. You acknowledge that Spigot and its partners and affiliates own all rights, title and interest in the SearchProtection, and services provided through or in conjunction with the SearchProtection, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the SearchProtection. You also agree to not remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the SearchProtection.
- Although the SearchProtection display the search results, products or services of various persons or entities (individually and collectively "Entities"), such display in no way implies, suggests, or constitutes any sponsorship, affiliation, endorsement, or approval of or by such Entities or their or our respective products or services. Spigot will have no liability for the actions or inactions of Entities or your use of their products or services. In any case, your use of the SearchProtection, and your use of any merchants' or the products and/or services of such Entities are entirely at your own risk.
- Spigot provides the SearchProtection and services "as is" and "as available" and, except as expressly set forth in these Terms disclaims all other warranties, whether written, oral (and We never enter into any oral understandings or agreements), express or implied, including without limitation any warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Spigot will not be liable due to outages caused by the failure of network or communications components or errors in any electronic files, whether or not provided by Spigot. Spigot makes no representation or warranty that the operation of the SearchProtection or Spigot's site will be uninterrupted or error-free, and Spigot will not be liable for the consequences of any interruptions or errors. No advice or information from Spigot, whether oral (and We never enter into any oral understandings or agreements) or written, will create any warranty not expressly stated in the Terms.
8. THIRD PARTY SITES / SERVICE PROVIDERS / VENDORS
8.1 Links To Third Party Sites
Links within or accessed from Spigot or the SearchProtection (again, including those associated with the new default home page, start page, and/or search engines) may link to other sites or platforms ("Reference Sites"). We are not responsible for such linked Reference Sites, including, without limitation, the content or links displayed on such Reference Sites. You agree that We have no liability and are not responsible at all for anything on or linked from or occurring as a result of Your visiting any Reference Site. You understand that anything on or linked from any Reference Site does not represent the positions, opinions, etc. of Spigot and Spigot does not endorse or affirmatively support anything on or linked from any Reference Site. 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.
8.2 Third Party Service Providers / Vendors
If We mention or link to any third party service provider or vendor, You agree that We are not responsible for even the most trusted third party service providers / vendors; We encourage You to determine for Yourself whether any such third party service providers / vendors are right for You and Your particular needs. Spigot is mentioning or providing links to third party service provider or vendors as a convenience, and even if Spigot is remunerated in some fashion, Spigot is not responsible for such third party service providers or vendors, including, without limitation, the goods or services they provide or content or links displayed on or provided by third party service providers or vendors. You agree that Spigot assumes and has no liability and is not responsible at all for anything on or linked from or occurring as a result of Your visiting any third party service provider or vendor Site or Your obtaining any information, goods, or services, from or through such third party service provider or vendor. You understand that anything on or linked from any third party service provider or vendor site does not represent the positions, opinions, etc. of Spigot and Spigot does not endorse or affirmatively support anything on or linked from any third party service provider or vendor Site. Access and use of third party service provider or vendor sites, including the information, materials, products, and services on or available through third party service provider or vendor sites is solely at Your own risk.
We may report to law enforcement authorities any actions that We believe may be illegal, and any reports We receive of such conduct. When we believe we are legally required to do so or at Our discretion, We may cooperate with law enforcement agencies, regulators, or parties to a civil action in any investigation or requests for information, including of alleged illegal activity related to Us or the SearchProtection or on the Internet, and may disclose information that We have about You.
10. DISCLAIMER OF WARRANTIES AND PROMISSORY ESTOPPEL
YOUR USE OF ANY SPIGOT SITE, EXTENSION, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS IS AT YOUR OWN RISK. SPIGOT IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURE OF ANY EXTENSION OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH ANY SITE, EXTENSION, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), OR ANY ERRORS (INCLUDING OMISSIONS) IN THE EXTENSION, SITE OR SERVICES, OR FOR ANY LACK OF ACCESS TO ANY SITE, EXTENSION, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). SPIGOT HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN ANY SITE, EXTENSION, OR SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, WHETHER PROVIDED BY US OR OUR SUPPLIERS OR LICENSORS (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS).
SPIGOT, FOR ITSELF AND ITS LICENSORS, DISCLAIMS, AND MAKES NO EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH ANY EXTENSION, SITE OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) INCLUDING RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON OR THROUGH ANY EXTENSION, SITE OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH EXTENSION, SITE, OR SERVICE, AND ANY INFORMATION OR MATERIAL (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) CONTAINED OR PRESENTED ON OR THROUGH EACH EXTENSION, SITE OR SERVICE IS PROVIDED TO YOU ON AN "AS IS", "AS AVAILABLE", AND "WHERE IS" BASIS WITH NO WARRANTY OR EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT WILL SPIGOT, OR ITS AGENTS, OFFICERS, OR ATTORNEYS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE YOUR COMPUTER, YOUR BROWSERS, SEARCHPROTECTION, ANY EXTENSIONS, SITES, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), EVEN IF SPIGOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SPIGOT DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE, OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER [ALTHOUGH WE TRY TO PROTECT AGAINST THAT].
REGARDLESS OF SUPPOSED OR ACTUAL REPRESENTATIONS MADE TO YOU ORALLY OR IN WRITING BY SPIGOT CONCERNING ACTIONS SPIGOT MAY OR WILL TAKE, YOU MAY NOT AND WILL NOT RELY UPON SAME, AND WILL NOT BRING OR PARTICIPATE IN ANY ACTION OR CLAIMS REGARDING SAME, AND YOU WAIVE ALL RIGHTS AND CLAIMS INCLUDING FOR BREACH OR PROMISSORY ESTOPPEL, UNDER LAW AND EQUITY.
11. LIMITATION OF LIABILITY AND DAMAGES
11.1 Limitation of Liability
WE WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF ANY EXTENSION, SERVICES, SITES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF SEARCHPROTECTION, ANY EXTENSIONS, SITES, OR SERVICE TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH SEARCHPROTECTION, ANY EXTENSION, SITE, SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, OR FOR ANY LACK OF ACCESS TO ANY EXTENSION, SITE, SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE MAY INTERRUPT ANY EXTENSION, SITE, OR SERVICE AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO YOU WHATSOEVER. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) HOWEVER ARISING, EVEN IF WE KNOWSOR HAVE BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGE. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN US AND RECEIVED THROUGH OR ADVERTISED ON ANY EXTENSION, SITE, SERVICE, OR RECEIVED THROUGH ANY REFERENCE SITES.
THESE TERMS DO NOT GRANT YOU OR ANY THIRD PARTY NOT IN PRIVITY TO THIS AGREEMENT ANY GREATER OR ADDITIONAL RIGHTS OR REMEDIES AGAINST YOU OR US THAN SUCH THIRD PARTY MIGHT OTHERWISE HAVE ABSENT THESE TERMS. THESE TERMS DO NOT GRANT ANY THIRD PARTY BENEFICIARY RIGHTS, AND SUCH RIGHTS ARE EXPRESSLY DISCLAIMED.
11.2 Limitation of Damages
IN NO EVENT WILL SPIGOT OR ITS AFFILIATES', CONTRACTORS', EMPLOYEES', AGENTS', ATTORNEYS', OR THIRD-PARTY PARTNERS', LICENSORS', OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, OR YOUR USE OF ANY EXTENSION, SITE, SERVICE, OR REFERENCE SITES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OR USING ANY EXTENSION, SITE, OR SERVICE, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
THESE LIMITATIONS OF DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES AND RECEIVED THROUGH OR ADVERTISED ON ANY EXTENSION, SITE, SERVICE, OR CONTENT, OR RECEIVED THROUGH ANY REFERENCE SITES.
11.3 Limitations by Applicable Law
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE, IF THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY AT ALL. 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 DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS, THOUGH IT IS OUR POSITION THAT SINCE THE LAWS OF NEVADA GOVERN THIS AGREEMENT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE DO NOT APPLY. YOU AGREE THAT THE FOREGOING DOES NOT GIVE YOU ANY RIGHT TO ASSERT, AND YOU WILL NOT ASSERT, THAT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY OR THAT THE VENUE FOR ANY SUCH CLAIMS WOUD BE IN SUCH JURISDICTION.
11.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE SEARCHPROTECTION, EXTENSIONS, SITES, AND SERVICES, SET OUR PRICES AND OTHER CONSIDERATION, 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 US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE ANY EXTENSION, SITE, SERVICE, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
12. YOUR REMEDIES
13. LOCAL LAWS; EXPORT CONTROL
Spigot operates from its headquarters in the State of Nevada in the United States of America and a SearchProtection, Site or Service may not be appropriate or available for use in other locations. If You use any SearchProtection, Site, or Service outside the United States of America, You are responsible for following applicable local laws. 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 software, 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 software, technical data, or commodities to certain foreign countries without prior approval of such agency. Your rights under the Terms are contingent on Your compliance with this and all other provisions.
14. INDEMNIFICATION & RELEASE
You agree to indemnify, defend, save, and hold harmless Spigot, its parent and affiliated companies, contractors, employees, agents, attorneys, and its third-party suppliers, licensors, and partners, from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of any Spigot Platform, Service, Content, any violation by You of any term of these Terms, or any breach of the representations, warranties, promises, or covenants made by You herein. Spigot reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify, defend, or hold harmless Spigot, and You agree to cooperate with Spigot's defense of these claims. Spigot will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
Users are responsible for their acts and omissions and content placed on any Spigot Platform. In the event that You have a dispute with or claim against one or more Users, You release Spigot (and our parents, subsidiaries, officers, directors, shareholders, employees, agents, joint ventures, consultants, successors and assigns) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code Â§1542, which says: "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."
YOU AND WE AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR ANY EXTENSION, SITE, OR SERVICE, EXCEPT FOR OUR RIGHTS TO SEEK INDEMNIFICATION, DEFENSE, AND TO BE HELD HARMLESS, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU ARE, HOWEVER, REFERRED TO SECTION 12, REGARDING YOUR REMEDIES.
16. DISPUTE RESOLUTION
If a dispute arises between You and Spigot, we would like to achieve a neutral and cost effective means of resolving disputes quickly. Except as set forth otherwise in these Terms, You and Spigot agree to resolve any claim or controversy at law ("Claim"), and although You have waived Your right to seek equitable or injunctive relief, should You attempt to pursue such relief in contravention of Your agreement not to, You will seek to resolve any claim or controversy at equity, that arises out of Your use of any Spigot SearchProtection, Site, Or Service, or these Terms in accordance with one of the subsections below or as Spigot and You otherwise agree in writing, signed by hand, on paper. Before resorting to these alternatives, we strongly encourage You to first contact us directly to seek a resolution by contacting us. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Law and Forum for Legal Disputes - This Agreement (the Terms) is governed in all respects by the laws of the State of Nevada and controlling U.S. federal law, without regard to conflict of law provisions. You agree that any Claim or dispute You may have against Spigot, or Spigot may have against You, must be resolved exclusively by a state or federal court located in Washoe County, Nevada, or the federal courts of the District of Nevada, Reno Division, USA, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts (and arbitrators) located within Washoe County, Nevada, USA, for the purpose of litigating all such claims or disputes.
Arbitration Option - Although Section 12 regarding Your remedies governs, for any claim (excluding claims by Spigot for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they will initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted by telephone, online, and/or solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If we are unable to agree upon an ADR provider then the default ADR provider will be the American Arbitration Association, JAMS, or Judicate West, as decided by the party submitting the claim for arbitration.
Improperly Filed Claims - All claims You bring against Spigot must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to this Dispute Resolution Section will be considered improperly filed. Should You file a claim contrary to this Dispute Resolution Section, Spigot may recover attorneys' fees and costs up to $1,000, provided that Spigot has notified You of the improperly filed claim, and You have failed to promptly withdraw the claim.
17. CLASS ACTIONS
You expressly waive the right and agree not to bring or participate in any class action or joinder or consolidation of claims with respect to any dispute under or relating to this Agreement, including in any arbitration.
- Third Party Agreements. You will comply with the terms and conditions of all agreements you have with third parties, including providers of marketplaces, as such terms and conditions relate to use of our services including terms and conditions related to types of items that may be sold or restrictions on concurrent sales.
- No Agency. You and Spigot are arms-length parties to a contract, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
- Notices. Except as explicitly stated otherwise, any notices given by You must be given to Our postal address or to Our registered agent for service of process. Required notices to You by Us will be deemed given the earlier of upon posting to our site at http://bittorrent.downloadnetworkhost.com or http://bittorrent.downloadnetworkhost.com/privacy.html or 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Spigot during any registration process. In such case, notice will be deemed given 3 days after the date of mailing.
- Governing Law. Nevada law will govern this Agreement, except for the body of law relating to conflicts of law. Subject to the Arbitration Section, venue for any legal action will be the state courts of Washoe County, Nevada, or the federal courts of the District of Nevada, Reno Division, USA,. The prevailing party in any litigation in connection with this Agreement will be entitled to recover from the other party its costs and reasonable attorneys' fees and other expenses.
- Waivers. A party's failure to enforce any provision of this Agreement will not be a waiver of the provision or the right to enforce it at a later time.
- Entire Agreement. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof, and will not be modified except in writing, signed by both parties by hand, or by a change to these Terms made by Us as set forth herein. You agree that you are not entering into this Agreement in reliance on any statements or representations other than those set forth herein. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.
- Assignment. This Agreement is not assignable, transferable or sublicensable by you without Spigot's prior written consent, and any such conveyance will be null and void.
- Headings. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement will control. The use of headings is for convenience and will not affect the interpretation of this Agreement.
19. RESERVATION OF RIGHTS
Spigot reserves all rights not expressly granted in these Terms.
20. PREVENTION OF UNAUTHORIZED USE
Spigot reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of any SearchProtection, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use. Spigot reserves the right to monitor Your use of any Spigot SearchProtection to ensure compliance with this Agreement. If Spigot, or its affiliates, or assignees, in their sole and unfettered discretion, determine that You are not in compliance with this Agreement, Spigot reserves the right to take such action deemed necessary to resolve this issue.
a) We may in Our sole and unfettered discretion, for any or no reason, and without penalty, terminate these Terms and Your access to use of the SearchProtection, without cause and without notice to you. Upon termination, you must discontinue use of the SearchProtection.
- This limited license terminates automatically, without notice to You, if You breach any term, condition, covenant, agreement, warranty, or representation of the Terms. Upon termination of this limited license, You agree to immediately uninstall the SearchProtection and all copies thereof, including backup or archival copies. Except as stated herein, You acknowledge that You have no right, title, or interest in or to any SearchProtection.
- These Terms along with any other notices or policies contain the understanding with respect to your use of the SearchProtection, and will supersede all prior understandings and agreements, whether written or oral (and We never enter into any oral understandings or agreements), and all prior dealings.
- These Terms are subject to change, but you can review these Terms any time by visiting this page.
- The provisions of these Terms, which by their nature should survive the termination or expiration of these Terms, will survive such termination or expiration.
You may terminate these Terms by uninstalling the SearchProtection from your computer and discontinuing your use of the SearchProtection.
[The following within the brackets is for your information only, and is not a contractual agreement, including and notwithstanding anything stated or implied elsewhere
You can easily uninstall the SearchProtection application by going to Control Panel, selecting SearchProtection and clicking Uninstall.
In accordance with Cal. Civ. Code §1789.3, if You are domiciled in California You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
24. QUESTIONS OR COMMENTS
If you have questions or comments, please send us a note at support_[at]_ spigot_[dot]_com.
© Spigot, Inc., - All Rights Reserved
Effective Date: May 2, 2013