LiveBar - Terms of Service for LiveBar Customers
Last Updated: September 24, 2009
Overview
Definitions
1. Acceptable Use, Content and Conduct
2. Payment
3. Community Content
4. License to LiveBar Platform
5. License to Embeddable Widgets
6. License Restrictions
7. LiveBar and LiveWorld Trademarks and Legal Notices
8. Third Party Content and Hyperlinks to Third Party Sites
9. Representations and Warranties
10. LiveBar Platform Policies
11. Copyright Infringement/Digital Millennium Copyright Act Compliance
12. Disclaimer of Warranties
13. Indemnity
14. Limitation of Liability
15. Changes to the LiveBar Platform
16. Amendments
17. Term and Termination
18. Governing Law; Arbitration; Venue
19. Relationship of Parties
20. United States Export Controls
21. No Third Party Beneficiaries
22. Your Interactions with Other Users
23. Feedback
24. General
25. Contacting LiveWorld
Overview
Thank you for using LiveBar, a product of LiveWorld, Inc. (hereinafter “LiveWorld,” “we” or “us”). LiveWorld provides the LiveBar Platform (as defined below) that enables you (hereinafter “Client,” “You” or “Your”) to create, join or browse LiveBar Communities (as defined below) built on the LiveBar Platform. We also provide a set of LiveBar Client Services (as defined below) that will enhance Your experience as a LiveBar Client on the LiveBar Platform.
These Terms of Service contain general terms that apply to You as a LiveBar Client and user of the LiveBar Platform, along with additional terms that may apply to You as a LiveBar Community Creator (as defined below) if You decide to create Your own LiveBar Community. When using the LiveBar Platform, You will also be subject to the LiveBar Privacy Policy, LiveBar Acceptable Use Policy (“AUP”) and additional posted guidelines, policies or rules applicable to specific services and features on the LiveBar Platform, which may be posted by us from time to time (collectively, the "Guidelines"). The LiveBar Privacy Policy, AUP and Guidelines are part of this Agreement and are hereby incorporated by reference.
These Terms of Service, including any Guidelines and future modifications (collectively the "Terms of Service" or "Agreement") govern Your use of the LiveBar Platform and is a legal contract between You and LiveWorld.
By registering with us or using or browsing the LiveBar Platform, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, do not use the LiveBar Platform at any time.
You represent that You are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If You are using or creating a LiveBar Community on the LiveBar Platform as a representative of a company or legal entity, (i) You represent that You have the authority to enter into this Agreement on behalf of that company or entity, and (ii) You agree that the terms "You" and "Your" in this Agreement refers to Your company or legal entity.
Definitions
"Content" means (i) any work of authorship in a LiveBar Community, including, but not limited to, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags and other content added to or submitted with any of the foregoing; and (ii) other materials posted on or transmitted through the LiveBar Platform. "Your Content" is any Content that You submit to a LiveBar Platform, as a LiveBar Client. Your Content includes the name, logo, trademark, brand features and other Content that You (and not the Members of Your LiveBar Community or Communities) make available. Content does not include the LiveBar Platform Code.
"LiveBar Community" consists of code and other Content and are web applications running on top of the LiveBar Platform. LiveBar Communities are created by LiveBar Clients and are provided for Members of that LiveBar Community to interact and connect with other Members of that LiveBar Community or Communities. LiveBar Community features may include member profiles, friends, invitations, discussion forums, photo sharing, video sharing, music and podcast sharing, events, latest activity streams, RSS feeds, pages, ratings, reviews, and recommendations, among others. If you are a LiveBar Community Creator, "Your LiveBar Community" is a community created and operated by You on the LiveBar Platform.
“LiveBar Client or LiveWorld Client” is that person or entity that has established a business relationship with LiveWorld for the purposes of using the LiveBar Platform to provide LiveBar community services to users of the LiveBar Client’s website. A LiveBar Client is provided with a LiveBar Client ID.
"LiveBar Client ID" is a unique account You create with LiveWorld which includes a name, email address and password.
“LiveBar Platform” is a software platform using LiveBar Technology that provides community services to members of LiveBar Communities.
"LiveBar Technology" means the past, present and future content of the LiveBar Platform, including all software in any format (including the Platform code and LiveBar Code), Embeddable Widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectable elements of the LiveBar Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the LiveBar Platform and the LiveBar Platform itself, including, the selection, sequence, and "look and feel" and arrangement of items on the LiveBar Platform, and all LiveBar Marks (as defined below), domain names, patents, and other intellectual property. LiveBar Technology does not include Your Content or Your Code.
"LiveBar Code" means the software code (i.e., HTML, JavaScript, or other code) used to provide the functionality for a LiveBar Community that is interpreted by the LiveBar Platform code.
"LiveBar Community Creator" is a LiveBar Client who creates and operates one or
"LiveBar Community Members" are users who have registered with a particular LiveBar Community on the LiveBar Platform. "Your Community Members" are users who have registered with Your LiveBar Community.
"LiveBar Community Member Data" means data provided by or collected from a Community Member by a LiveBar Community Creator for a particular LiveBar Community, such as profile data, including certain items of registration information (e.g. email addresses), answers to questions, forum posts, and statistical information about Content contributed.
"LiveBar Members" are Users who complete a registration process with a LiveBar Community and obtain a LiveBar ID.
"LiveBar Member Data" is data collected from Users by LiveBar, including the data collected for a LiveBar ID and any data provided in Your LiveBar Profile (as defined below). LiveBar Member Data does not include LiveBar Client Data.
"LiveBar Client Services" are the services LiveWorld provides to Community Creators. LiveBar Client Services include, but aren't limited to: LiveBar Client registration and authentication services; LiveBar Client account management; LiveBar Community management and security applications; internal and external APIs; JavaScript-compatible APIs; a semi-structured content store; and social network display, management, and search services. Certain basic LiveBar Client Services may be provided free of charge when you create a LiveBar Community on the LiveBar Platform.
"LiveBar Profile" means information that a LiveBar Client has provided to LiveBar that is aggregated by LiveBar into a master profile. Your LiveBar Profile is separate from any profile that You create on a particular LiveBar Community.
"Premium Services" are services provided by LiveWorld to LiveBar Community Creators for an additional fee.
“Services” means the LiveBar Client Services and the Premium Services.
"Third Party Software" means software that is licensed to You by third parties, including software that is subject to any "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.
"Users" are all end users of the LiveBar Platform, and include You, any unregistered users, all LiveBar Members, all members of Your Community or Communities and all Third Party Application Developers.
"Your Code" means any script, code, or other computer software uploaded by You to the LiveBar Platform.
"Embeddable Widget" means any embeddable application provided and hosted by LiveBar that allows for the viewing or playing of audio, photos, video, text and other material on third party websites or services.
“LiveBar View” is a billable entity which can contain one or more LiveBar API calls to the LiveBar platform. Each functional pane within a LiveBar counts as a view [e.g. dashboard, list of shouts, blogs, conversations, registration screen, etc.. The first call on a page to display the closed LiveBar is a view. Further, each call to the LiveBar Platform from a LiveBar widget embedded in a customer’s page will count as a view.
1. Acceptable Use, Content and Conduct
You are solely responsible for Your conduct and the Content of Your LiveBar Community. Use of LiveBar for unlawful or harmful activities is expressly prohibited. You agree that you will abide by the LiveBar Acceptable Use Policy (“AUP”).
In addition to the AUP, You agree not to behave:
- In a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtain LiveWorld financial or other personal information in a misleading manner or for fraudulent or misleading purposes; or
- In a manner that is libelous or defamatory, or in a way that is otherwise threatening to LiveWorld, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another's privacy; or
- In manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable; or
- In a manner that includes personal or identifying information about another person without that person's explicit consent.
You also agree:
- Not to impersonate a LiveWorld employee, or any other person, or falsely state or otherwise misrepresent Your affiliation with any person or entity, or to obtain access to another LiveBar or LiveWorld Community without authorization; or
- To collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations; or
- Not to request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of the LiveBar Platform, including LiveBar ID or passwords from LiveBar Communities, or to proxy authentication credentials for any Member of the LiveBar Platform for the purposes of automating logins to the LiveBar Platform and associated LiveBar Communities; or
- Not to attempt to gain unauthorized access to LiveWorld's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the LiveBar Platform; or
- Not to take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the LiveBar Platform or for using it for purposes unrelated to LiveBar); or
- Not to develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the LiveBar Platform.
You agree to immediately notify LiveWorld in the event of an actual or threatened claim that you or your members have violated any of the covenants and REPRESENTATIONS contained in this Agreement.
2. Payment
The terms of our Services are described here and. In LiveWorld’s sole discretion are subject to change from time to time at Liveworld’s sole discretion. . LiveWorld may choose to temporarily change the fees for the Services for promotional or new services, and such changes are immediately effective when LiveWorld posts the temporary promotional event or new service on the LiveBar Platform. Any changes to fees for Services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the LiveBar Platform. The changes shall only apply prospectively to the Services you've purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.
Payment Generally
You are responsible for paying all fees and applicable taxes associated with the Services in a timely manner with a valid payment method. You hereby authorize LiveWorld to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein "Payment Method") for all charges to Your accounts with LiveWorld. Your Payment Method will be charged the current fee for the Service You choose on the date that You click on the "Purchase" button in the ordering process. Today, we only offer month-to-month recurring payments. You agree that LiveWorld may automatically charge the fee to Your Payment Method at the beginning of each recurring period. For example, if You choose a Service with a monthly plan, you will be billed every month on the anniversary date of the date You clicked the "Purchase" button. Additionally, we may offer a pre-pay payment option for payment of Services ("Pre-Payment Plan"). If you opt for Pre-Payment plan, Your Payment Method will be charged the then-current fee for that Service at the commencement of each renewal period.
You acknowledge and agree that any credit card and related billing and payment information that You provide to LiveWorld may be shared by LiveWorld with companies who work on LiveWorld's behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to LiveWorld and servicing Your account. The terms of Your payment will be based on Your chosen Payment Method and may be determined by agreements between You and the financial institution providing such Payment Method. You agree to pay LiveWorld all charges incurred under Your account for any Service in which You or anyone else who uses your account (including children, family and friends) enroll in accordance with this Agreement and any applicable Services policies. If your Payment Method fails or Your account is past due, (a) You agree to pay all amounts due on Your account upon demand, (b) LiveWorld may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) LiveWorld reserves the right to either suspend or terminate Your Services and/or Your account with LiveWorld, including deletion of Your LiveBar Community from the LiveBar Platform.
Except as may be set forth in applicable Service policies or Section 17 (Term and Termination), any fees charged to Your account are non-refundable. You agree to submit any disputes regarding any charge to Your account in writing to LiveWorld within sixty days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the sole discretion of LiveWorld.
Payment by View
Your account will be billed based on the pricing plan package you have selected from LiveWorld's plan choices. If your usage of the system exceeds the number of views included in your selected plan package You will be billed at the specified per view rate for the selected payment plan for the remainder of that month.
Taxes
You are responsible for paying any governmental taxes imposed on Your use of the LiveBar Platform, including, but not limited to, sales, use, or value added taxes. If requested, You will promptly furnish to LiveBar the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that LiveBar is obligated to collect such taxes, the applicable tax will be added to Your billing account.
3. Community Content
LiveWorld does not claim any ownership rights in Your Content. After posting Your Content, You continue to retain ownership of Your Content, and You continue to have the right to use and license Your Content in any way You choose. The Content that You upload to any LiveBar Community must comply with the terms of this Agreement. At any point, You can remove Your Content from the LiveBar Community and cancel Your account and LiveWorld does not retain any license rights except as provided below.
You hereby grant LiveWorld, a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Your Content (a) for the sole purpose of operating and making Your Content available on the LiveBar Platform and in all current and future media in which the LiveBar Platform may now or hereafter be distributed or transmitted and (b) for our internal business purposes; and (c) as part of LiveWorld’s marketing promotion of its LiveBar Services; and (ii) disclose metrics regarding Your Content on an aggregated basis for advertising, marketing and business development purposes. If You wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. Without limiting the foregoing, LiveWorld reserves the right to retain copies of Content for archival purposes after termination of the Agreement.
You hereby agree that if Your Content is removed from any LiveBar Community due to a violation of these Terms, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, LiveWorld shall have the right to use, reproduce and exploit Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of LiveWorld, any individual, or the general public.
You are responsible for making sure that you have all rights in Your Content, including the rights necessary for you to grant the foregoing licenses to Your Content. You are solely responsible for Your Content. You understand that whether or not Your Content is published or marked private by You, LiveWorld does not guarantee any confidentiality or privacy with respect to any of Your Content. You agree not to include any advertising in any of Your Content unless you purchase the Premium Service to run Your own advertising on Your LiveBar Community.
In addition to the rights, licenses and privileges referred to above, You agree that LiveWorld, in its sole discretion, may use and refer to Your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, client lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the LiveBar Platform, and any products, goods, features, capabilities and/or services associated with the LiveBar Platform and LiveWorld Services.
As a LiveBar Client, You acknowledge that LiveWorld and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any LiveBar Community or the LiveBar Platform 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.
If a LiveBar Community is removed from the LiveBar Platform, the Content associated with that LiveBar Community may also be deleted at the sole discretion of LiveWorld. We encourage You to be sure you are comfortable with this possibility before contributing Your Content to a LiveBar Community. You should be aware that LiveWorld is not required and may not keep back-up copies of Content (including Your Content) on the LiveBar Platform once the LiveBar Community or Content is deleted. Additionally, LiveWorld makes no guarantee, either during or after the term of this Agreement, that Your Content will be safely stored on the LiveBar Platform and You should independently back-up Your Content.
4. License to LiveBar Platform
During and subject to the terms and conditions of this Agreement, LiveWorld hereby grants You a limited, non-exclusive, non-sublicensable, freely revocable license to access and use the LiveBar Platform solely to enable Your use of the LiveBar Client Services. For clarity, aside from the foregoing limited license, You acknowledge that You shall acquire no rights in the Platform Code.
You agree that, as between You and LiveWorld, all the intellectual property rights in the LiveBar Platform, which does not include Your Content or Your Code, are owned by LiveWorld or its licensors.
5. License to Embeddable Widgets
During and subject to the terms and conditions of this Agreement, LiveWorld hereby grants You a limited, non-exclusive, non-sublicensable, freely revocable license to incorporate Embeddable Widgets into other third party websites or Your own personal websites. The foregoing license shall terminate immediately upon expiration or termination of this Agreement or removal of Your LiveBar Community from the LiveBar Platform by LiveWorld or You, and You agree to immediately stop using such Embeddable Widget.
LiveWorld may from time to time, upon prior notice, charge assorted fees for the use of widgets and may create additional terms associated with widgets. If you choose to make use of said widgets, you agree to abide by the terms LiveWorld provides with those widgets
6. License Restrictions
Except as expressly permitted under this Agreement, You agree not to, nor will You allow any third party (whether or not for Your benefit) to:
· Run, rent, lease, loan, or sell access to the LiveBar Platform or the LiveBar Technology; or
· Decompile or reverse engineer or attempt to access the source code of the software underlying the LiveBar Platform or LiveBar Technology; or
· Copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any LiveBar Technology; or
· Access the LiveBar Platform to build a product using similar ideas, features, functions, interface or graphics of the LiveBar Platform; or
· Access (or attempt to access) any service on the LiveBar Platform by any means other than as permitted in these Terms of Service; or
· Circumvent, disable or otherwise interfere with security related features of the Embeddable Widget or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Embeddable Widget or the Content and Third Party Content therein; or
· Access the LiveBar Platform to upload Your Code or Your Content to cause a breach of security to the LiveBar Platform or any LiveBar Community or interfere with the proper working of the LiveBar Platform or prevent others from using the LiveBar Platform; or
· Delete the copyright and other proprietary rights notices on the LiveBar Platform or Embeddable Widgets.
7. LiveBar and LiveWorld Trademarks and Legal Notices
LiveBar and LiveWorld trademarks, logos, images, service marks, trade names and other distinctive branding features used on the LiveBar Platform (the "LiveBar Marks") are the trademarks of LiveWorld and may not be used without permission. LiveWorld is not granting You a license under any intellectual property right to the LiveBar Marks. Other trademarks, logos, and trade names that may appear on the LiveBar Platform are the property of their respective owners.
8.Third Party Content and Hyperlinks to Third Party Sites
Content from other Members or advertisers, including, information about third party products and services and any Third Party Software (collectively, "Third Party Content"), may be made available to You through LiveBar Client Services for use with the LiveBar Platform. The inclusion of Third Party Content on the LiveBar Platform does not imply LiveWorld’s affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, You agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and LiveWorld has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, LiveWorld or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any LiveBar Community) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to You. You understand that by using the LiveBar Platform You may be exposed to Third Party Content that is offensive, indecent or objectionable, and that You use the LiveBar Platform at Your own risk.
Additionally, LiveWorld or third parties may provide hyperlinks on LiveBar Communities, or any other form of link or redirection of Your connection to other sites ("Third Party Sites"). These Third Party Sites are in no way integrated into the LiveBar Platform and the inclusion of any link on the LiveBar Platform does not imply LiveWorld's affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. LiveWorld expressly disclaims responsibility for the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through the LiveBar Platform. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
9. Representations and Warranties.
You hereby represent and warrant to LiveWorld that: (a) You will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with Your use of the LiveBar Platform including Your promotional or other activities off the LiveBar Platform that relate to Your LiveBar Community; (b) You have the right to grant to LiveWorld the rights granted herein and You own or have all necessary rights, title and interest in and to Your Code and Your Content; (c) Your Code and Your Content does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content or Your LiveBar Community contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the LiveBar Platform, or intercept or expropriate any system data or personal information from the LiveBar Platform.
10. LiveBar Platform Policies
LiveWorld may establish general polices and limits concerning use of the LiveBar Platform ("LiveBar Platform Policies"), including (and without limitation) the maximum number of days that LiveBar Communities and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to You or Your LiveBar Community(s), the maximum number of times and duration for which You may access the LiveBar Platform in a given period of time, the maximum bandwidth used by Your LiveBar Community(s) or Content, the maximum number of hits (Views) to the LiveBar Platform and the maximum CPU power used by Your LiveBar Community or Content.
11. Copyright Infringement/Digital Millennium Copyright Act Compliance
It is LiveWorld's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act ("DMCA"). LiveWorld may remove any allegedly infringing Content without any liability to You.
LiveWorld will promptly terminate without notice any Member's access to the LiveBar Platform, including access to any LiveBar Community, in appropriate circumstances where the Member is a "repeat infringer" of copyrights. Generally, LiveWorld will consider a Member a repeat infringer if it has received more than two third-party notices of alleged infringement concerning Content or network code posted by that Member anywhere on the LiveBar Platform. LiveWorld, however, reserves the right to identify and terminate Members under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that Member.
12. Disclaimer of Warranties
YOUR USE OF THE LIVEBAR PLATFORM, AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LIVEWORLD CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE LIVEBAR PLATFORM AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LIVEWORLD CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LIVEWORLD AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. LiveWorld AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT THE LIVEBAR PLATFORM, OR ANY NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LIVEWORLD CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LIVEBAR PLATFORM OR THE SERVER THAT MAKES THE LIVEBAR PLATFORM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LIVEWORLD MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE LIVEBAR PLATFORM OR YOUR LIVEBAR COMMUNITY (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR LIVEBAR COMMUNITY OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-LIVEWORLD CODE WITH ANY LIVEWORLD TECHNOLOGY.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LIVEBAR PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LIVEWORLD OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM THE LIVEBAR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
13. Indemnity
You agree to indemnify, defend, and hold harmless LiveWorld and its successors, subsidiaries, affiliates, co-branders, contractors, employees, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to:
- Your Code, Your Content or Your LiveBar Community;
- Your use of any Non-LiveWorld Code or Third Party Software;
- Your use or misuse of, or connection to, the LiveBar Platform;
- Your breach or alleged breach of this Agreement;
- Your violation of any rights (including intellectual property rights) of a third party;
- Your use or misuse of any User data (including LiveBar Member Data), including, in violation of the LiveBar Privacy Policy; and
- Your breach or alleged breach of any agreement or policy between You and other Users.
- Any illegal acts pursued with the use of the LiveBar Platform
LiveWorld reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us and You agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of LiveWorld. LiveWorld will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
14. Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL LIVEWORLD OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF LIVEWORLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE LIVEBAR PLATFORM. IN NO EVENT SHALL THE DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) EXCEED THE GREATER OF (i) $100 OR (ii) THE TOTAL AMOUNTS PAID TO LIVEWORLD BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN LIVEWORLD (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE LIVEBAR PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN 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 AGREEMENT 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. Changes to LiveBar Platform
LiveWorld reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the LiveWorld Platform or any part thereof with or without notice. LiveWorld will not be liable to You or to any third party for any modification, suspension or discontinuance of the LiveBar Platform.
16. Amendments
We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to You by posting a revised version on www.LiveBarhq.com or elsewhere on the LiveBar Platform. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of the LiveBar Platform after posting of the changes constitutes Your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing Client (including LiveBar Members and Community Creators) on the earlier of (a) the date You accept it, or (b) 30 days after the material changes are initially posted to www.livebarhq.com or elsewhere on the LiveBar Platform. The revised version will apply to You immediately if You are a Client who registers or first uses the LiveBar Platform on or after the posting of the revised version.
17. Term and Termination
Term
This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your membership within any Community on the LiveBar Platform at any time and for any or no reason by following the instructions on the "My Settings" page while logged in to a LiveBar Community. Additionally, You may terminate your LiveBar Client account and end Your use of the LiveBar Platform at any time and for no reason by following the directions here or contacting us at questions@livebar.com or at the address set forth below in the "Contacting LiveBar" Section.
Termination
LiveWorld has the right (at its sole discretion) for any reason or no reason to (i) delete, disable or deactivate Your account, block Your email or IP address, or otherwise terminate Your access to or use of the LiveBar Platform or any LiveBar Community, (ii) remove and discard any Network Code or Content within any LiveBar Community or anywhere on the LiveBar Platform or (iii) shut down a LiveBar Community, with or without notice, and with no liability of any kind to You. If You terminate your account, we will have no obligation to refund You any fees You may have paid or are due through the date of termination, including fees to the end of the month in which the date of termination occurs, except as may be required by applicable law.
Effects of Terminating
Upon deactivating Your account, this Agreement terminates and you will no longer have a right to access Your account, Your Code, Your Content, Your Community Member Data or Your Community(ies). LiveWorld will not have any obligation to assist You in migrating Your data, Your Content, Your Community Member Data, Your Code or Your Communities(ies) off of the LiveBar Platform and LiveWorld does not keep any back-up of any of Your Content or Your Community Member Data. LiveWorld is not responsible for deleting Your Code, Network Code or Content on Your behalf. Note that, even if Your Code, Network Code or Content is deleted from LiveWorld's active servers, it may remain in our archives (but we have no obligation to archive or back-up Your Code or such Network Code or Content), and subject to the licenses set forth in this Agreement.
18. Governing Law; Arbitration; Venue
Governing Law
This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
Arbitration
Before resorting to arbitration, You agree to first contact LiveWorld directly at legal@liveworld.com to seek a resolution through mediation.
To fairly resolve any dispute arising between You and LiveWorld regarding your use of LiveBar, You and LiveWorld agree that any controversies, claims, or disputes by either You or LiveWorld will be settled exclusively by binding arbitration governed by the Federal Arbitration Act and administered by the American Arbitration Association under its rules for the resolution of consumer-related disputes, or under other mutually-agreed procedures. Because this method of dispute resolution is personal, individual, and provides the exclusive method for resolving such disputes, you further agree that you will not participate in a class action or class-wide arbitration for any claims arising out of or related to these Terms of Service. You also acknowledge that You are hereby waiving your right to a jury trial. Any arbitration under this agreement shall be conducted in Santa Clara, California.
Your use of LiveBar constitutes your acceptance of this arbitration agreement.
Venue
To the extent a lawsuit is permitted, You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.
19. Relationship of the Parties
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that LiveWorld has no special relationship with or fiduciary duty to You. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
20. United States Export Controls
You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from LiveWorld under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, LiveWorld from and against any fines or penalties that may arise as a result of Your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
21. No Third Party Beneficiaries
The parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
22. Your Interactions with Other Users
Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and the other User. Like with any web-based interaction, we suggest that You use caution and good judgment. If there is a dispute between You and any third party (including any LiveWorld Client), LiveWorld is under no obligation to become involved.
You hereby release LiveWorld, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. If you are a California resident, you waive California Civil Code Section 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." And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
23. User Data
As between You and LiveWorld, all User Data shall be Your property. You hereby grant LiveWorld a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform User Data on or through the Service in order to provide the Service; (ii) to use and analyze the User Data in furtherance of LiveWorld's internal business purposes; and (iii) disclose the User Data and related metrics on an aggregated basis for marketing and business development purposes, including targeting advertisements through the Service, provided that such aggregated User Data does not identify any of Your Users individually. You shall ensure that Your Terms of Use allows for the foregoing and You shall indemnify, defend and hold LiveWorld harmless from and against any claims of Your Users resulting from LiveWorld’s use of the User Data in accordance with the terms of this Section 23.
24. Your Information
You agree to provide LiveWorld with Your complete and accurate contact information, including, without limitation, when completing the affiliate registration process. This information includes legal name or business name, street address, e-mail address, and name and telephone number of an authorized administrative contact. You agree to update this information within fifteen (15) days of any change to it. If the contact information You have provided is false or fraudulent, LiveWorld reserves the right to terminate Your access to the Service in addition to any other legal remedies.
23. Advertising
You may only place advertisements within the Service into those advertising slots controlled by You, if any, as such slots are explicitly designated within the LiveWorld Client Services by LiveWorld in its sole discretion. LiveWorld shall have the right to include advertisements in all other areas, if any, of the Service and LiveWorld shall be the sole beneficiary of any revenues derived there from. You may not alter, obscure, diminish, hide, or remove any such advertisements included by LiveWorld within the Service or change their position on web pages.
24. Feedback
You hereby assign and agree to assign to LiveWorld all right, title, and interest in and to any enhancement requests, recommendations, suggestions, comments, evaluations, ideas, or other information relating to the Service (“Feedback”) provided by You to LiveWorld, including, but not limited to, all Intellectual Property Rights embodied in such Feedback.
25. Force Majeure
In no event shall LiveWorld incur any liability to You or any of Your Users on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused by events, occurrences, or causes beyond the control and without negligence of LiveWorld, including by not limited to acts of God, strikes, riots, acts of war, lockouts, earthquakes, fires and explosions.
26. General
The failure of LiveWorld to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You may not delegate Your duties under this Agreement or assign this Agreement or Your LiveBar accounts or LiveBar IDs, in whole or in part, without the prior written consent of LiveWorld, provided, however, that You may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. LiveWorld may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties' permitted assignees, transferees and successors.
This Agreement, which incorporates the LiveBar Privacy Policy and the Guidelines, constitutes the entire agreement between You and LiveWorld and governs your use of the LiveBar Platform, superseding any prior agreements (whether written or oral) between You and LiveWorld regarding the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in this Agreement.
The terms "including" and "includes" shall be deemed to be followed by the statement "without limitation" and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
LiveWorld may provide You with notices, including those regarding changes to this Agreement or any of LiveWorld’s terms and conditions, by email, regular mail, or postings on the LiveBar Platform. Notice will be deemed given twenty-four (24) hours after email is sent, unless LiveWorld has previously been notified that the email address is invalid. Notices not pertaining to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to the LiveBar Platform) are deemed given two (2) days following the initial posting.
27. Contacting LiveWorld in Relation to LiveBar
You may contact LiveWorld in the following ways:
E-Mail: questions@livebar.com
Postal:
LiveWorld, Inc.
Attn: LiveBar
Suite 101
4340 Stevens Creek Blvd
CA 95129
We welcome Your questions and comments and thank You for using LiveBar!
