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| Ether Member Agreement | ||
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These terms of use are a binding legal agreement ("Agreement") between You and Ether, a division of Ingenio, Inc. and hereafter referred to as "Ether." The term "You" or "Your" refers to the legal person or entity creating an account with Ether, including without limitation You, the company or entity which You represent together with Your employees, agents, representatives or authorized third parties. The terms and conditions which govern Your use of Ether services and the ether.com website (individually and collectively "Ether Services") are as follows: 1. You may use Ether Services subject to all of the terms and conditions set forth herein as well as the policies and guidelines of Ether all of which are considered part of this Agreement, including without limitation the Ether Privacy Policy, the Payment Policy, the Forum Policy, the Copyright and Trademark Policy and the Reviews and Comments Policy. The terms, conditions, policies and guidelines set forth herein or incorporated herein by reference are collectively referred to in this Agreement as "Terms and Policies" and may be modified at any time by Ether in its sole and absolute discretion with or without notice, provided however, that Ether will send You an e-mail to the email address that we have on record for You to notify you of any modifications to the Terms and Policies. If after modification the Terms and Policies are no longer acceptable to You, Your only recourse is to terminate Your use of Ether Services. However, if You continue to use Ether Services after the effective date of any modifications to these Terms and Policies, Your use will constitute acceptance of the Terms and Policies and You will be bound by the Terms and Policies, as modified. You must be at least eighteen (18) years old and capable of entering a binding contract under applicable law to use Ether Services. Upon request of Ether, You shall provide us with verification of Your age, identity and other personal identifiable information. You shall not use Ether Services in a country where You are prohibited from using such services. 2. You will create a unique Member Name and password to access Your account and Info Provider Services (as defined below). You are solely responsible for all activity in Your password protected account. You are solely responsible for Your use of Ether Services and the conversations and communications You have with persons who contact You for advice, information or services ("Info Purchaser(s)") or persons who You contact who provide advice, information or services (" Info Provider(s)") in connection with use of Ether Services. When acting as an Info Provider, You are solely responsible for any services, information and products (collectively "Info Provider Services") You provide to Info Purchasers, including but not limited to, information provided in Your listing (collectively "Your Provider Listing"), and any content, statements, discussion or information contained in Your websites, e-mails, communications, blogs, web logs, contact lists, reference materials or links in any form or media. Ether does not provide any advice, information or products or verify, guarantee or make any representations regarding the identity or qualifications of any Info Provider or Info Purchaser, or that such Info Provider has the necessary authority of licenses to provide such Info Provider Services. Ether shall not be liable for any of Info Provider Services or for the timeliness or content of the communications between Info Providers and Info Purchasers. Info Providers (or Info Purchasers) who do not keep their scheduled appointments will not be the responsibility of Ether and appointments are set up at the sole risk of the Info Provider and Info Purchaser. 3. In connection with Your use of Ether Services You shall not, and shall not authorize any person to (i) use Ether Services for fraudulent, misleading, deceptive, unfair or illegal business practices (ii) violate or encourage violation of any laws or regulations (iii) violate the privacy rights or publicity rights of any third party, or (iv) violate the copyright, patents, trademarks or trade secrets of any third party. You, as an Info Provider, represent and warrant that You hold all necessary right, title and interest to any information or materials used in Your Provider Listing and in Your provision of Info Provider Services and to Info Purchasers. You also represent and warrant that You will not violate the intellectual property rights, publicity rights or rights of privacy of any third party or user in connection with Your Provider Listing or Your provision of Info Provider Services. You also represent that You will not use the Ether Services for any illegal purpose or for any gambling, adult entertainment or adult oriented services and that you will comply with all applicable laws and regulations. If during Your use of Ether Services You come into possession of any confidential or proprietary information belonging to Ether, You shall keep that information strictly confidential (except as otherwise required by law), including but not limited to the non-public details of Your use of Ether Services and any amounts payable to You and Ether hereunder. 4. Ether Provider Listings are subject to Ether’s review and approval prior to appearing in the directories of Ether and its distribution affiliates and partners. Final decision as to inclusion and/or placement of Your Provider Listing, relevancy of the category and the like is at Ether's sole and absolute discretion. Ether reserves the right, at any time in its sole and absolute discretion, to reject, suspend, cancel or remove Your Account or Provider Listing, to make non-material, minor clerical and administrative edits to any Provider Listing, to assign new category and keyword designations to any Provider Listing, and to refuse to provide You access to Ether Services without notice to You and for any reason or no reason whatsoever, and Ether, its employees, consultants and other agents shall have no liability for taking (or not taking) such actions or decisions. Ether is authorized by You to modify Your listing content or written text so that it can be distributed in multiple media forms by Ether and its distribution affiliates and partners, including without limitation audio or video. 5. Ether does not evaluate, provide, produce or control the Info Provider Services, or the information or exchanges between Info Providers and Info Purchasers, in any manner. Although Provider Listings may contain verified credentials, the verification services are provided by third parties and Ether does not itself provide any advice, information or entertainment services or other products or services, nor verify, guarantee or make any representations regarding the identity or qualifications of any Info Provider. Further, Ether does not make editorial or managerial decisions concerning content. Nor will Ether be held responsible for any Info Provider’s failure to comply with laws or regulations concerning the content of listings. Instead, Ether acts as a technology service that allows Info Providers and Info Purchasers to share information, entertainment services or other products or services among themselves. Although Ether Services helps Info Providers and Info Purchasers connect with one another, Ether does not monitor any communications or information exchanged, and, as a result, does not control, nor is responsible for the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said, depicted or written by Info Providers or Info Purchasers, including without limitation any information, products or services obtained in connection with Ether Services. However, Ether reserves the right to contact Info Providers or Info Sellers and review Your emails and handle third party complaints about You in order to evaluate Your compliance with Ether’s Terms and Policies or to take actions as permitted in the Privacy Policy. 6. Ether shall own all right, title and interest in Ether Services and the ether.com site, including but not limited to, all methods, processes, content, formats, designs, URLs, buttons, phone numbers, toll free numbers and number extensions together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. No copyrights, patent rights, trademarks or licenses are conferred herein by Ether, either expressly or by implication. You understand and agree that (i) You will have no right, title and interest to any of the toll free numbers, phone numbers or extension numbers assigned to You (ii) that Ether may change Your toll free number, phone numbers and/or extension number at any time in its sole and absolute discretion (iii) You will have no right, title and interest to any listing name in connection with Ether Services and (iv) that phone numbers, toll free numbers, extensions and listing names may be recycled by Ether to other users of Ether Services if You are not actively using them or Your agreement has been terminated. Further, You hereby grant to Ether, its distribution partners, affiliates and similar third party website/media providers of Ether's choice the right to use, copy, distribute, display or reference in any media form Your listing information, including without limitation, Your listing name, tags, descriptions, photos, Ether buttons, phone numbers and extensions. 7. ETHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. ETHER DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, TIMELINESS AND PERFORMANCE OF ETHER SERVICES, AND ANY INFORMATION, ADVICE OR SERVICES OBTAINED FROM INFO PROVIDERS AND THE TIMELINESS THEREOF THROUGH THE USE OF ETHER SERVICES OR ANY LINKS PROVIDED BY THEM. FURTHERMORE, ETHER SHALL NOT BE LIABLE TO YOU FOR THE CONSEQUENCES OF ANY INTERRUPTION OF ETHER SERVICES OR ANY ERRORS. (A) UNDER NO CIRCUMSTANCES SHALL ETHER, OR ITS PARENT COMPANY, AGENTS, AFFILIATES, SUPPLIERS OR PARTNERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, OR SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF ETHER SERVICES OR COMMUNICATIONS BETWEEN INFO PROVIDERS AND INFO PURCHASERS, WHETHER THE DAMAGES ARE FORSEEABLE AND WHETHER OF NOT ETHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (B) WITHOUT LIMITING THE FOREGOING, ETHER'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT AND YOUR USE OF ETHER SERVICES SHALL NOT EXCEED THE GREATER OF (i) THE TOTAL CHARGES ACTUALLY PAYABLE BY YOU TO ETHER UNDER THIS AGREEMENT IN THE PREVIOUS SIX (6) MONTHS PRIOR TO THE CLAIM GIVING RISE TO LIABILITY, OR (ii) $200. 8. You, as an Info Purchaser or Info Provider, are responsible for all of Your account transactions. You as an Info Purchaser represent and warrant that You are authorized to use the credit card, debit card or other payment mechanism listed for Your account. By adding funds to Your account, You authorize such amounts to be charged to such credit card, debit card or other payment mechanism to pay for Info Provider Services, including without limitation, phone communications with the Info Provider (e.g. live, via interactive voice system, voice mail, or call centers), paid mail, Mail Buttons, payment requests and any other services provided through the use of Ether technology or Ether's platform. Rates charged for the Info Provider Services are based upon the rate identified at the time of purchase. You, as an Info Provider, agree that from all amounts to be paid to You for Your provision of Info Provider Services that You shall pay Ether a percentage of such amount and connection charges as set forth in the Payment Policy. All fraud claims and chargebacks occurring in connection with Your provision of Info Provider Services are Your responsibility. Account charges are exclusive of taxes. You will be responsible to pay all taxes and governmental charges associated with Info Provider Services and Your use of Ether Services. 9. You shall indemnify, defend and hold harmless Ether, its parent company, agents, affiliates, suppliers and partners from any third party claim or liability (including reasonable legal fees and costs) arising out of or in connection with (i)Your use of Ether Services, (ii) the provision of Info Provider Services, (iii)Your breach of any representation or warranty, (iv) Your breach of this Agreement or any of its Terms or Policies, or (v) any infringement of intellectual property rights related to Info Provider Services. 10. Your access to Ether Services and this Agreement may be terminated by Ether at any time for any reason or no reason, with or without prior notice, without liability to Ether. Notwithstanding the foregoing or anything to the contrary herein, obligations and liabilities which arose prior to termination shall survive the termination of Your Ether Services or this Agreement. 11. You consent to the use of electronic means to complete this Agreement and to provide You with any notices related to this Agreement. You also consent to the use of electronic records to store information related to this Agreement and Your use of the Ether Services. 12. Any notices to Ether must be sent to Ether-a division of Ingenio, Inc., 182 Howard Street, # 826, San Francisco, CA 94105 with a copy to the Legal Department, via first class mail return receipt and are deemed given upon signed receipt. 13. Under no circumstances shall Ether, its parent company, agents, affiliates, suppliers and partners be liable for any delay or failure in performance of Ether Services resulting directly or indirectly from forces, causes or matters beyond its reasonable control. 14. Performance under this Agreement shall be deemed to take place in the State of California. This Agreement shall be governed by the laws of the State of California, excluding its conflicts of laws principles. Any disputes arising from this Agreement shall be adjudicated in the courts of the City and County of San Francisco. You may not assign this Agreement or any of Your rights herein, and any attempt to do so is void. Any amendments or modifications by You must be in writing and signed by both You and Ether to be valid. If any provision is invalid or unenforceable with respect to a party, the remainder of the Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. No waivers shall occur unless in writing. The waiver of any default shall not be a waiver of any subsequent default. Terms and conditions of this Agreement which by their express language or by their sense and context survive the termination or cancellation of this Agreement will so survive. This Agreement together with the Terms and Policies constitute the entire agreement between You and Ether with respect to the subject matter contained herein. |
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