Metalkills.com TERMS OF SERVICE AND CONDITIONS OF WEBSITE USE AGREEMENT
Updated as of April 1, 2013
1.1 Your access and use of the Site, apart from the initial reading of this Agreement, shall constitute Your agreement to be bound by the obligations imposed on You as a User of the Site and Your agreement to all of the terms and conditions of usage of the Site as they may appear herein or elsewhere in specific pages of the Site visited by You. Any such terms and conditions set forth on other pages of the Site shall be deemed incorporated by reference into this Agreement. Should you choose to register at this Site in order to post to the forum, or to submit reviews or for any other reason, your registration shall constitute your agreement to any additional terms and conditions found on the registration pages, which additional terms and conditions are hereby incorporated by reference into this Agreement. MK further reserves the right to suspend, discontinue or change functionality of the Site, services offered and terms thereof at its sole discretion.
1.2 MK reserves the unilateral right to change, discontinue, modify or supplement the features and services offered at this Site, at its sole discretion, including, but not limited to, the imposition of a fee for continued access to and use of any or all features and/or services at the Site, provided, that no such fee will be imposed until notice of such imposition shall be have been posted in an update to this Agreement in the manner set forth in Paragraph 2 herein, and until You register for any such fee paid feature or service.
1.3 This Site is operated and maintained exclusively from servers located in the United States of America and is not intended to subject MK to the laws or jurisdiction of any state, country or territory other than that of the United States and MK does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. If You choose to access this Site from a location outside the United States, you expressly assume the risk of, and You shall be solely responsible for, compliance with any and all laws of your local territory or jurisdiction of access which may apply. MK specifically reserves the right, at any time and in its sole unfettered discretion, to limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction.
2. Changes to Agreement: This Agreement, including but not limited to and incorporated provisions, may be modified and/or supplemented periodically. Notice by MK of any such modification and/or supplementation may be given by posting on this page. User will be deemed to have agreed to the Agreement, as modified and/or supplemented, upon User’s first visit and use of the Site after notice shall have been given of such modified and/or supplemental provisions. Should you ever refuse to agree to any changes in the Agreement, your only remedy shall be to discontinue use of the Site.
3 Third Party Intellectual Property Rights and Terms of Service:
3.1 In an effort to do the best job it can in meeting the needs and wants of its audience on this Site, MK does and/or may incorporate and/or display and/or link to photos, images, videos, audio clips and text that are the intellectual property of third parties. It also allows certain services to be provided and/or merchandise to be offered by third parties in which MK has no ownership interest. Any party that provided trademarks, service marks, and logos to MK retain all rights with respect to any of their respective trademarks, service marks, and logos appearing in this Site.
3.2 By viewing and/or using this Site, You acknowledge the validity of such third party intellectual property rights, agree not to copy, publish, distribute or otherwise violate the intellectual property rights of such third parties and, further, hereby agree, in addition to any other indemnity provision set forth in this Agreement, to specifically indemnify MK and its affiliates from any and all claims of intellectual property infringement by any third party. Moreover, you agree to abide by any separate terms of service or other use agreement imposed by such third parties whose services and/or merchandise are linked to or included in this Site and, further, hereby agree to indemnify MK and its affiliates from any and all claims of violation of such separate terms of service by any third party.
3.3 This Site is hosted by hostgator, such that MK is not responsible to You for — and makes no representations or guaranties regarding — the continued availability or performance of the Site. MK shall not be responsible to You for any temporary unavailability of the Site or the failure of proper functioning of any particular feature or service provided on the Site, any minimum connection speeds or other technical matter affecting the operation of the site, storage of data or other information provided and/or stored on the Host’s Site servers. By visiting this Site and/or using any of the services offered on the Site, You agree that MK shall not be responsible to You for any temporary or permanent loss of data or other information provided and/or stored on the Host’s Site servers and does not guaranty the continued availability of any portion of the Site. Some services on the Site may currently be offered for free and MK reserves the right to charge for same or for additional functionality or access in the future at its sole discretion. If You register for any service that is free of charge at the time of registration and which is changed to a paid service, You will be given a chance to re-register. Should you choose not to re-register, Your only remedy shall be to discontinue use of the service.
4. Content Not Directed at Children: This Site is not directed at children under the age of 13 and MK shall not knowingly or intentionally collect personally identifiable information from anyone under the age of 13. Notwithstanding the foregoing, the subject matter of this Site and third party materials contained on it may sometimes be considered to be Mature content and may be offensive to some individuals.
5. User Responsibilities: Apart from Your compliance with Your remaining obligations under this Agreement, You specifically agree to comply with the following obligations imposed pursuant to this Paragraph 5. You acknowledge that MK is specifically relying on this representation and agrees to be responsible for any and all damages that may arise based on User’s non-compliance. Further, you agree that Your failure to fully and timely comply with these obligations will, at MK’s sole discretion, be grounds for immediate termination of your right to use this Site, in whole or in part.
5.1 Equipment and Downloads: You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to this site for the reconstruction of any lost data. MK does not assume any responsibility or risk for your use of the Internet. User takes full responsibility for all equipment used to access and use the Site, as well as for protecting same against viruses, worms, Trojan horses, malware and other software or other code that may manifest contaminating or destructive properties that may cause damage to User’s hardware or other equipment used to access the Site. To the extent that downloads or streaming or embedded media are made available at the Site, User hereby agrees that any download of files or accessing of materials from the Site by User is done at User’s sole election and at User’s own risk, which User hereby specifically assumes. For further information on this subject, MK’s disclaimers of warranty are further described below in Paragraph 9.
5.2 User Information Provided: To access this Site or some of the resources it has to offer, You may be asked to provide certain registration details or other information. It is a condition of Your use of this Site that all the information you provide on this Site will be truthful, correct, current, and complete. If MK, in its sole judgment, believes the information You provide is not correct, current, or complete, You agree that MK has the absolute right to refuse you access to this Site or any of its resources, and to terminate or suspend Your access at any time. You hereby represent that any identifying information provided by You, including, but not limited to, personal information, whether for purposes of registration, forum participation or otherwise ( “User Personal Information”), shall be truthful and accurate. You shall not attempt to hide Your IP address nor use other means to evade properly identification and You shall update Your User Personal Information as and when needed for You to remain in compliance with Your representations in this paragraph. Any user names and passwords used for this site are for Your individual use only and are not transferable. You will be responsible for the security of Your password (if any). You agree that if any information You provide is false, inaccurate, obsolete or incomplete, we may terminate Your use of the Site and/or Your access to any part of it.
5.3 Security: You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password discovery programs, cracking tools or network probing tools) is strictly prohibited.
5.4 Use Restrictions: You agree and acknowledge that Your viewing of this Site, access to same, and use of the services contained therein are for Your personal, non-commercial use only (“Permitted Purposes”). You may use this Site only for the Permitted Purposes. For example, You may not (and may not authorize any other party to) (i) co-brand this Site, or (ii) frame this site, or (iii) in-line link to this Site without the express prior written permission of an authorized representative of MK For purposes of this Agreement, “co-branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute this Site or content accessible within this Site without the express prior written consent of MK. You agree to cooperate with MK in causing any unauthorized co-branding, framing or hyper-linking immediately to cease The materials, files and content on this site contain copyrighted content and material and User specifically agrees that it will make no reproduction, publication, distribution, modification, re-purposing, adaptation or other use of any content or materials on this Site, in whole or in part, nor otherwise exploit same for sale or other commercial benefit whatsoever without the prior written consent of MK. Nor shall You take any actions with respect to such content and material that may expose MK to criminal liability or to civil liability to third parties.
5.5 License of User Supplied Content: You hereby grant to MK the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and sub-license all content, remarks, suggestions, ideas, graphics, files, images or other information communicated to MK by You. through this site (together, the “USC”), and to incorporate any USC in other works in any form, media, or technology now known or later developed. MK will not be required to treat any USC as confidential, and may use any USC in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future MK operations. You agree that You are not entitled to any compensation, credit or notice whatsoever and that by contributing such USC You waive the right to make any claim against MK relating to such USC, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality, or based upon any claimed violation of alleged privacy related rights of any kind. (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works. You also permit any user of the Site to access, display, view, store, distribute, perform, reproduce and prepare derivative works of, such USC that You have placed, posted or allowed to be posted in publicly accessible areas of the Site. No compensation will be paid to You or to any other person or entity with respect to the posting or use of Your USC. MK is under no obligation to post or use any USC that You submit and MK reserves the right to remove such UMC at any time in its sole discretion. You agree that MK has no duty of confidentiality, express or implied, concerning Your USC. You represent and warrant that You own or otherwise control all necessary proprietary rights to the USC that You submit to be posted, and, also, that such USC is accurate.
5.6 Avoidance of Defamatory or other Offensive Materials: You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other material that could give rise to any civil or criminal liability under the law. User understands that MK’s allowing of User to post on the Site does not constitute any adoption of the opinion, information or other content contained in such User post. MK shall not be liable in any manner as the speaker, publisher or distributor of any such opinion, information or other content posted and User hereby agrees to indemnify MK against any and all cost, expense and damage, including, but not limited to, reasonable legal fees incurred by MK as a result of any claims by one or more third parties regarding same, including, but not limited to, any claims relating to defamation or otherwise.
5.7 General User Representations:
5.7.1 In addition to the specific User representations agreed to hereinabove, You also represent and agree that, by using, posting or transmitting to or from this Site, You shall be conclusively deemed to be representing and declaring, under penalties of perjury that: You are an adult, being at least 18 years of age; You are NOT accessing this material to use against MK; You will not redistribute this material to anyone nor will You permit any minor to see this material, or any other person who might find such material personally offensive. You are not a law enforcement officer, nor a postal inspector, nor operating under an assumed name ( other than Your Username) or in cooperation with any criminal investigation; nor are You seeking out evidence which may serve as the basis for any charge of violating federal, state, or local laws. You understand and state that You are retrieving and/or posting and/or transmitting and/or viewing material from a location where it does not violate any federal, state, or local law or community standard, and agree to bear the full, complete, and sole responsibility for bringing such material into whatever community You choose to do so. You understand that this Agreement forbids Your access and use of the site to the extent that it is unlawful for You to do so in the jurisdiction where You are located.
5.7.2 You acknowledge that You may not post, send, submit, publish, or transmit in connection with this Site any material that:
220.127.116.11 advocates illegal activity or discusses an intent to commit an illegal act; is vulgar, obscene, pornographic, or indecent;
18.104.22.168 does not pertain directly to this site;
22.214.171.124 threatens or abuses others, libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
126.96.36.199 seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
188.8.131.52 infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
184.108.40.206 violates any law or may be considered to violate any law;
220.127.116.11 impersonates or misrepresents Your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
18.104.22.168 advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as may be specifically authorized on this Site;
22.214.171.124 solicits funds, advertisers or sponsors;
126.96.36.199 includes programs which contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
188.8.131.52 violates any policy or regulations established from time to time regarding use of this Site or any networks connected to this Site; or contains hyper-links to other sites that contain content that falls within the descriptions set forth above; or
184.108.40.206 which depicts anyone without their prior knowledge and consent.
6. Removal and Termination: You acknowledge and agree that Your use of the Site, whether as a registered user or otherwise, and Your access to to any services offered at the Site, may be terminated and/or canceled, at the sole option of MK, should MK, in its sole opinion, conclude that User has violated any of its obligations imposed under this Agreement and/or infringed on the intellectual property or other legal rights of MK or this parties and/or otherwise engaged in defamatory or other legally actionable conduct, or for any other reason or no reason, in MK’s sole discretion. Further You agree that MK shall have the right to terminated if You are found to be a repeat copyright infringer
7. Monitoring : MK hereby advises You that MK has no obligation to monitor or evaluate any USC posted or other content uploaded to the Site by a user or visitor. Notwithstanding the foregoing, MK reserves the right to edit, disable or remove any such USC posted or other content uploaded to the Site by You or any other user, in its sole discretion, in order to comply with legal process, demand, statute, regulation or third party complaint and/or where MK believes in good faith that any such USC posted or other content uploaded to the Site appears to be infringing, regardless of whether or not actual infringement is ultimately established. Moreover, MK shall have the right, in its sole discretion, to provide or forward or disclose any information You have provided or that MK has collected about You, such as Your IP address or other personally identifying information, as MK may consider necessary or desirable in response to such legal process or demand or in order to comply with any such statute, regulation or third party complaint. MK reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing MK to disclose the identity of anyone posting, publishing or otherwise making available any materials that are believed to violate this Agreement. By accepting this agreement You waive any claims and hold MK harmless from any claims resulting from any action taken by MK during or as a result of its investigations and/or from any actions taken as a consequence of investigations by either MK or law enforcement authorities.
8. Copyright Infringement DMCA Agent: Anyone claiming in good faith that content being utilized or displayed on this Site violates or infringes any of their rights in a copyrighted work may notify MK and request that it remove or prevent access to the claimed infringing material. If You have a good faith belief that someone has wrongly filed such a notice with MK, the DMCA provides that You may send a counter-notice to MK. Please note that any notice or counter-notice sent to MK in this regard must meet the all statutory requirements for same required by the DMCA at the time of transmission of the notice or counter-notice. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If You believe in good faith that materials available on the Site infringe Your copyright, You (or Your agent) may send Company a notice requesting that Company remove the material or block access to it. If You believe in good faith that someone has wrongly filed a notice of copyright infringement against You, the DMCA permits You to send Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
8.1 Such written notice shall be addressed to such Copyright Agent in writing and include the following, as same may be amended by then current requirements of law:
8.1.1 A physical or electronic signature of the person claiming authorization to make the Complaint on behalf of the alleged copyright holder;
8.1.2 Specific identification and description of the Work as to which copyright infringement is claimed, as well as the material on the Site claimed to infringe such copyrighted Work;
8.1.3 Information identifying the location (e.g. page and portion of the Site) where the allegedly infringing information is found;
8.1.4 The complaining party’s physical or email address and/or telephone number and/or other information reasonably sufficient for the Copyright Agent may contact them;
8.1.5 A statement that the complaining party is making the complaint in good faith on the ground that the allegedly infringing material is being used in violation of the law and/or in a manner not authorized by the copyright holder, its agent or the law;
8.1.6 A statement, made under penalty of perjury, that the information contained in the notification is accurate and that the complaining party is authorized to act for the holder of an exclusive right in the allegedly infringed copyrighted work.
8.2 If You believe in good faith that someone has wrongly filed a notice of copyright infringement against You, the DMCA permits You to send Company a counter-notice, which must contain the following information:
8.2.1 Your physical or electronic signature, as well as your name, address and telephone number;
8.2.2 Your statement identifying the material and its location prior to being removed or disabled;
8.2.3 Your statement under penalty of perjury that the material was removed by mistake or misidentification;
8.2.4 Your consent, if you live in the United States, to the jurisdiction of a federal court in the federal judicial district where you live or, if you do NOT live in the United States, your consent to the jurisdiction of a federal court in the federal judicial district where your service provider is located; and
8.2.5 Your consent to accept service of process from the party on whose behalf the takedown notice was first given.
8.3 Other Intellectual Property Infringement: Any complaints regarding forms of intellectual property infringement other than copyright infringement , such as, for example, trademark infringement, should be sent to firstname.lastname@example.org.
9 Indemnification, Limitation on Liability and Disclaimer:
9.1 In addition to specific indemnities set forth above in this Agreement, You further agree to indemnify MK, its service providers, employees, agents, officers, directors, and contractors, affiliates, successors and assigns, licencors, content providers, (the “Indemnified Parties”) harmless from any breach of this Agreement by You, including any use of Content other than as expressly authorized in this Agreement. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and You agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith or arising out brought by governmental authorities third parties arising out of Your use of the information accessed from this Site.
9.2 LIMITATION ON LIABILITY : MK, ITS AFFILIATES, LICENCORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF GIVEN PRIOR NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF MK AND ITS AFFILIATES, LICENCORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO MK FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE, WHICHEVER IS LESS.
9.3 DISCLAIMER: YOUR USE OF THIS SITE IS AT YOUR OWN RISK. THE CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. MK DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. MK. DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MK DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND MK. MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT MK, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR ITS CONTENT. MK MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
10. Trademark and Site Copyright: The Mark “Metalkills.com” and associated logo are registered trademarks of Audience Engage, LLC. Unless otherwise noted, all materials, including, but not limited to, articles, images, illustrations, designs, icons, photographs, videos and audio files that are part of the Web site (collectively, the “Content”) are protected by copyright and owned, controlled or licensed by Audience Engage, LLC or the party credited as the provider of the Content. You shall abide by all additional copyright notices, information or restrictions contained in any Content accessed through the Web site.
12. Choice of Law, Jurisdiction and Miscellaneous:
12.1 Choice of Law: This Site is operated and maintained from servers exclusively located in the United States of America. You agree that this Agreement and the relationship created thereby shall be exclusively governed by the laws of the State of California, notwithstanding and without regard to its conflict of law provisions and any other principles of conflicts of laws or any different or contrary laws applicable in the jurisdiction or territory from which You access this Website.
12.2 You agree to submit to the exclusive jurisdiction over all disputes hereunder and venue in the federal and state courts in the State of California located in Los Angeles County. You specifically consent to personal jurisdiction in a court of competent jurisdiction located in Los Angeles County, City of Los Angeles and State of California in connection with any dispute between or involving You and MK arising out of this Agreement, Your use and access of this Website, claims of third parties based on same, or otherwise arising out of the subject matter thereof. MK and You each hereby agree that the exclusive venue for any dispute between the parties herein arising out of this Agreement or pertaining to the subject matter thereof will be in a court of competent jurisdiction in the, City of Los Angeles and State of California and that, in any such dispute, both parties hereby waive the right to jury trial.
12.3 Severability: If any part of this Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
12.4 No Waiver. No delay or failure by MK to enforce any of its rights under this Agreement or any other terms and conditions found elsewhere on this Website shall operate as a waiver thereof.
12.5 Entire Agreement: This Agreement constitutes the entire agreement between MK and You relating to this subject matter, until and unless updated with notification, as set forth above.