EFFECTIVE DATE: July 15, 2009
In order to use ePals' Products and Services, you may be required to download software or content and/or agree to additional Terms and Conditions. Those additional Terms and Conditions are hereby incorporated by reference into this Agreement unless otherwise noted. In the event of a conflict between those additional Terms and Conditions and this Agreement, those additional Terms and Conditions shall govern.
I. PROHIBITED TYPES OF CONTENT AND ACTIVITIES
"Content" refers to all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials - whether publicly posted or privately transmitted - provided by us and our licensors and displayed on the Sites.
Users of the Sites may be subject to international, federal, state and local laws, including but not limited to laws regulating the privacy and security of personal information (collectively, "Laws"). As a User you are solely responsible for your use of the Sites being in compliance with all applicable Laws. In addition, with respect to your use of the Sites and ePals' Products and Services, you agree that you will not submit or create Content that:
- impersonates any person, business or entity;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, invasive of another's privacy, or contains explicit or graphic descriptions, or accounts of, sexual acts;
- victimizes, harasses, degrades, or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- encourages criminal conduct or conduct that might create civil liability for ePals;
- contains viruses or other computer files or code that interrupts, destroys or limits the functions of any computer software, hardware or telecommunications equipment, or otherwise permits unauthorized use of a computer or computer network;
- violates the rights of others including intellectual property rights.
- use ePals' Products and Services for any commercial purpose without ePals' prior express permission;
- use ePals network to transmit unsolicited e-mail;
- forge headers or other transmission information in order to disguise the origin of your posting to a message board, blog or chat room or to disguise any other communication such as an e-mail message;
- use ePals' Sites or Products and Services in any manner that could damage, disable, overburden, or impair our servers or networks;
- attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through "hacking," "password mining," or any other means;
- use automated tools, robots, any data mining or similar data gathering and extraction tools to access, crawl, meta-search, and/or collect any of the Content or information accessible through the Sites;
- frame any portion of any ePals Site or any Content; or
- otherwise violate this Agreement, any ePals licensing agreement or any policy posted on one or more of the Sites.
ePals reserves the right to investigate and take appropriate legal action against anyone who, in ePals' sole discretion, violates these provisions, including but not limited to removing the offending Content, terminating the membership of such individuals, filing a lawsuit to seek civil remedies and reporting such individuals to law enforcement.
Except as otherwise required by law, ePals takes no responsibility for, and make no representations or warranties concerning, the privacy, confidentiality, or security or the accuracy of any information entered, disclosed, or transmitted to third parties through the Sites by Users.
II. USE OF CONTENT
Attributions: All copyright and other intellectual property rights in the Content on the Sites are owned by ePals, unless otherwise indicated. Such Content is protected by copyright, trademark, patent, trade secret and other laws. ePals owns and retains all rights in ePals Content. ePals grants you a limited, revocable, nonsublicensable license to view or download a single copy of the ePals Content (excluding any software code) solely for your personal, noncommercial use if you include this copyright notice: "Copyright ePals, Inc. All Rights Reserved," as well as any and all other copyright and proprietary rights notices contained in the material. Otherwise, no ePals Content may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed.
Ownership of Copyrights, Trademarks, Patents and Trade Secrets: ePals Content is protected under U.S. and foreign copyright, trademark, patent and/or trade secret laws, with title to ePals Content held by ePals and/or its licensors. The Sites also contain Content owned by other copyright and trademark holders. Except for Content created solely by you ("User Content"), you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content that appears on, or is accessible through, the ePals Sites or use of ePals Products or Services.
The look and feel of our color combinations, button shapes, and other graphical elements on ePals are our trademarks. The names of and logos associated with ePals' Products and Services are owned by ePals and are protected by U.S. and foreign trademark laws.
You shall be solely responsible for any Content you submit and the consequences of posting or publishing such Content. With respect to any Content you submit, you affirm, represent and warrant that:
- you have the written consent, release and/or permission of each identifiable individual person identified in such Content to use the name, likeness or other personal characteristics of each such identifiable individual.
Any unauthorized use, modification or copying of ePals Content, or Content that constitutes the intellectual property of others, is a breach of this Agreement. The use of any Content on any other Web site or networked computer environment is expressly prohibited.
We do not claim ownership of any User Content you post; however, by posting or transmitting such User Content, you grant us, our affiliates, our successors, and others with whom we have agreements, a perpetual, transferable, royalty- free worldwide right to use, copy, display, perform, modify, distribute, adapt, aggregate, translate, reformat, sublicense, create compilations and collective works, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including but not limited to over the Internet or any other uses or media)
We do not read or display to third parties the content of emailed messages or exploit it commercially. Any and all intellectual property rights that are not expressly granted hereunder are reserved to ePals and its licensors.
ePals' retains the right, in appropriate circumstances and in its sole discretion, to disable and/or terminate the accounts of Users who infringe or repeatedly infringe ePals or others' copyrights or other intellectual property rights.
Reporting copyright infringement: If you believe that your work has been copied in a way that constitutes copyright infringement, please provide ePals' Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the allegedly infringing material is located on the ePals site, with enough detail that we may find it on the Web site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
Our Designated Copyright Agent to receive notifications of claimed infringement is:
Attn: General Counsel
Re: Copyright Claim
13625-A Dulles Technology Drive
Herndon, Virginia 20171
Attn: General Counsel
Re: Copyright Claim
13625-A Dulles Technology Drive
Herndon, Virginia 20171
IV. PERSONAL INFORMATION, USER CONTENT AND CONFIDENTIALITY
ePals offers educational or literacy programs such as the In2Books® Pen Pal program, which helps kids become better readers and thinkers in part through correspondence with adult pen pal mentors. If you register for any of our programs, you will be exposed to private and/or Confidential Information - such as the thoughts and writings between students and pen pals. You agree that you shall not - during the course of your participation in any ePals program or at any time thereafter - use, disclose or otherwise make available to any third party any Confidential Information, except as permitted below. For purposes of this Agreement, "Confidential Information" means i) all personal information of another participant in an ePals Program (including but not limited to students, other students, teachers, and other pen pals) and the contents of communications between Users of ePals products, services and programs to which you were not a party and ii) any and all oral, written, electronic and/or tangible technical, financial, business and/or other information disclosed to you by ePals, a licensee of ePals (or a person under the direction of one of the foregoing) or learned by you from participating in the ePals program that is confidential, proprietary and/or not generally available outside of the Company.
You may only disclose Confidential Information in the following circumstances: 1) when required by a judicial order or decree or governmental law or regulation, but only after you have notified ePals reasonably in advance of such disclosure so that ePals can assert its interests; or 2) the information becomes generally available publicly without restriction and without breach of confidentiality obligations owed to ePals.
V. LINKING TO THIS WEB SITE
You may include a link to an ePals site on another Web site so long as the link does not portray ePals in a false or misleading manner and does not appear on a Web site that is offensive, obscene or otherwise objectionable.
VII. THIRD PARTY SITES; ADVERTISERS
ePals Sites may include links to third party Web sites. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate. ePals does not endorse, and is not responsible or liable, for any content, advertising, products, services or other materials on or available from such sites. You acknowledge and agree that we are not responsible for any Content or other materials, or the privacy policies and practices of these third party sites. Further, any dealings that you have with advertisers found on ePals Sites are between you and the advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against an advertiser.
By using this Site, you expressly waive any rights, claims or liability against ePals from your use of any third-party website.
VIII. USE OF SOFTWARE
We may automatically check your version of the Software, update it to improve its performance and capabilities, or protect it from unauthorized use. You understand that if you shut down the Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate, and this may affect other software you have.
The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government end Users acquire the Software with only those rights as set forth herein.
You agree to fully comply with all import and export laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and that you will not directly or indirectly export, re-export, transfer and/or release the Software, related technology, or any product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You bear responsibility for and assume all expenses relating to your compliance with the described laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.
If you access any ePals Site from outside the United States, you do so solely at your own risk, and you are responsible for compliance with the laws of the jurisdiction from which you access ePals.
IX. WARRANTY DISCLAIMER
USE OF ePALS' SITES, PRODUCTS AND SERVICES IS AT YOUR OWN RISK. ALL CONTENT AND PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR NONMISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUITE ENJOYMENT, ACCURACY OF INFORMATION CONTENT, OR SYSTEM INTEGRATION. ePALS ASSUMES NO LIABILITY FOR OR RELATING TO ANY DELAYS, FAILURES, INTERRUPTIONS, OR CORRUPTION OF ANY DATA OR OTHER MATERIAL OR INFORMATION TRANSMITTED IN CONNECTION WITH THE USE OF ePALS. ePALS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF ePALS SITES OR ANY CONTENT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
ePals MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS NECESSARY TO ENSURE THAT ANY CONTENT YOU MAY OBTAIN FROM THE WEB SITE IS FREE OF VIRUSES AND ANY OTHER POTENTIALLY DESTRUCTIVE COMPUTER CODE.
X. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL ePALS OR ANY OF ITS PARTNERS, AGENTS, AFFILIATES OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR USE OR ATTEMPTED USE OF THE ePals SITES, PRODUCTS OR SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SITE(S).
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND SUPPLIERS, SHALL BE LIMITED IN THOSE JURISDICTIONS TO THE EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless us, our parent and other affiliated companies, and our respective employees, contractors, officers, directors, and agents, from all liabilities, claims, and expenses, including attorneys' fees, that arise from your use or misuse of ePals Site(s), Products or Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification, in which event you will cooperate with us in asserting any available defenses.
XII. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
You agree that the laws of the Commonwealth of Virginia govern this contract and any claim or dispute that you may have against us, without regard to its conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Commonwealth of Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
XIII. DISPUTE RESOLUTION
Any disputes and/or claims arising out of this Agreement and/or the use of the Sites and/or any products and services acquired under or relating to this Agreement shall be resolved exclusively through the use of binding arbitration. Such arbitration shall be subject to the Federal Arbitration Act and the rules of the American Arbitration Association which shall govern such arbitration and be conducted before a single arbitrator in Fairfax County, Virginia. Any claimants shall have their claims/disputes resolved on an individual basis. Class action arbitration is prohibited under this Agreement. Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other Users or arbitrate any claims as a member of a class or in a private Attorney General capacity. Each party shall bear its own costs, including any attorneys' fees, associated with such arbitration. Any award rendered in arbitration shall be final and binding, and may be enforced in any court having competent jurisdiction. In addition to any other remedies, we shall also have the right to seek injunctive relief outside of arbitration to protect our intellectual property rights.
XIV. SEVERABILITY AND INTEGRATION