NAMETHIS.COM Terms of Use, Content Posting and License Agreement
Date of Last Revision: June 3, 2008
Welcome to Kluster’s NAMETHIS.COM, a web site that lets the Kluster community of users (“Users”) post their name suggestions for consideration in naming projects submitted from time to time by project sponsors. This site found at www.namethis.com (the “NAMETHIS.COM Site”) is owned and operated exclusively by Kluster, Inc., a Delaware corporation, and its corporate affiliates (collectively referred to herein as “Kluster”, "us", "we" or "the Company"). These terms and conditions supplement the Company’s General Terms of Use (the “General Terms”), which you agreed to when you created a user account with the Company. The Company’s General Terms, which can be found at http://kluster.com/home/terms, are hereby incorporated by reference. These NAMETHIS.COM Terms of Use, Content Posting and License Agreement ("NAMETHIS.COM Terms of Use") further supplement the General Terms in connection with your use of Kluster’s NAMETHIS.COM Site. By posting any Content on the NAMETHIS.COM Site you acknowledge that you have read, understand and agree to be bound by these NAMETHIS.COM Terms of Use. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these NAMETHIS.COM Terms of Use at any time without further notice. If we do this, we will post the changes to these NAMETHIS.COM Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the NAMETHIS.COM Site after any such changes constitutes your acceptance of the new NAMETHIS.COM Terms of Use. If you do not agree to abide by these or any future NAMETHIS.COM Terms of Use, do not use or access (or continue to use or access) or post any Content to the NAMETHIS.COM Site. It is your responsibility to regularly check the NAMETHIS.COM Site to determine if there have been changes to these NAMETHIS.COM Terms of Use and to review such changes.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING VALUABLE INTELLECTUAL PROPERTY RIGHTS TO KLUSTER OR OTHER THIRD PARTIES FOR OUR OR ITS COMMERCIAL USE.
Basic Description of User Participation on the NAMETHIS.COM Site
The NAMETHIS.COM Site is developed and operates using a variety of specific terms and phrases, which are unique to the NAMETHIS.COM Site. The more commonly used terms are defined in more detail below. To summarize generally how the NAMETHIS.COM Site functions:
Project Sponsor’s may submit a request via the NAMETHIS.COM Site for Users to name a particular event, business, product, service or other thing. Users may then submit name suggestions to the general community of Users. Users then allocate Watts among the various name suggestions and the Company’s proprietary and confidential algorithms will choose the three User selected names for the project within 48 hours. All Users who submit name suggestions and all Users who allocate Watts to those name suggestions that are ultimately selected will be entitled to share in not less than 80% of the fee paid to the Company to post the naming project on the NAMETHIS.COM Site as further provided for herein.
Commonly Used Terms and their Definitions
All initial capitalized terms used in these NAMETHIS.COM Terms of Use shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere herein, the following Terms shall have the meaning listed below:
“Content” includes all information that may be generally disseminated via a web page, including without limitation all designs, text, graphics, pictures, video, animation, information, music, sound, audio, illustrations, diagrams, data, and other files and creative output, in whatever format. Content shall include Name Suggestions.
“Naming Fee” is the net revenue (gross revenue less commissions, incentives, rebates, etc.) actually received by the Company from a Project Sponsor in connection posting a Naming Project on the NAMETHIS.COM Site. The Company’s calculation of the Naming Fee shall be binding and conclusive unless the Company acts fraudulently.
“Intellectual Property Rights” means any Invention, writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, or similar laws.
“Inventions” includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.
“Moral Rights” means any rights to claim authorship of any Content, to object to or prevent any modification of any Content, to withdraw from circulation or control the publication or distribution of any Content, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right."
“Naming Project” means a project created on the NAMETHIS.COM Site whereby a Project Sponsor requests that the Users submit Name Suggestions for a particular product, service, business, event or other thing.
“Name Suggestions” means naming ideas that Users post in response to a particular Naming Project.
“Person” means any individual, trust or legal entity.
“Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.
“Selected Names” means those Name Suggestions that are ultimately selected by the Users through participation on the NAMETHIS.COM Site and presented to the Project Sponsor as the top three Name Suggestions for a given Naming Project.
“User” is anyone that creates a Kluster account online and is registered to participate as a user on the NAMETHIS.COM Site.
“User Allocation of Naming Fee” means no less than 80% of the Naming Fee associated with a particular Naming Project which shall be set aside and allocated for distribution among the Users as calculated by the Company’s proprietary and confidential algorithm, taking into a number of factors including Name Suggestions provided by a User, NAMETHIS.COM Site participating and Watts invested in Selected Names. The Company’s allocation among Users of the User Allocation of Naming Fee shall be conclusive, final and binding on all Users. The Company reserves the right to modify or discontinue the User Allocation of Naming Fee at its sole discretion upon amending these NAMETHIS.COM Terms of Use.
“Watts” are units which Users on the NAMETHIS.COM Site earn through their continued use and involvement with the NAMETHIS.COM Site and “invest” in Name Suggestions.
Other Parties Rights in Content
You acknowledge that by using the NAMETHIS.COM Site you will have access to Content provided by other Users. The Company does not pre-screen Content submitted by Users to the NAMETHIS.COM Site. You acknowledge that the Company and other Users and other third parties may have rights in Content posted to the NAMETHIS.COM Site under copyright and other applicable laws and treaty provisions, and that except as described in these NAMETHIS.COM Terms of Use, such rights are not licensed or otherwise transferred by mere use of the NAMETHIS.COM Site. You accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that your creation or submission of any Content is not in any way based upon any expectation of compensation from the Company or any other Users.
Monetary Compensation and Payment Obligations.
The NAMETHIS.COM Site has been created to facilitate community based idea generation around naming things. Users should not participate on the NAMETHIS.COM Site primarily for financial gain, as any actual monetary compensation actually received by a User in connection with the NAMETHIS.COM Site, may or may not bear any relation to the actual time invested on the NAMETHIS.COM Site, or the quality or quantity of Content submitted, or Watts owned, spent or otherwise utilized.
Notwithstanding the foregoing, Users are eligible to receive monetary compensation in connection with participating on the NAMETHIS.COM Site by sharing in the User Allocation of Naming Fees, which will be allocated among participating Users pursuant the Company’s proprietary and confidential algorithms.
The Company, at its sole discretion, reserves the right to modify any payments provided for hereunder, effective immediately upon amending these NAMETHIS.COM Terms of Use.
Because Name Suggestions are selected and the User Allocation of Advertising Revenue is allocated among Users pursuant to a complex confidential and mathematical algorithm, which utilizes many different variables and which may be changed at anytime at the sole discretion of the Company with or without notice, there can be no guarantee that you will ever receive any payments or actual compensation in connection with participating on the NAMETHIS.COM Site or providing Content. Kluster makes no representations or warranties regarding any actual monetary compensation that may be earned in connection with use of the NAMETHIS.COM Site. Kluster’s obligation to pay the User Allocation of Naming Fees is subject to the actual amounts received by Kluster. Notwithstanding any User Allocation of Naming Fees that may be allocated to your account, Kluster shall be under no obligation distribute such amount to you until such time as the aggregate amount payable in your account exceeds $100. Furthermore, notwithstanding anything to the contrary contained herein, Kluster reserves the right to distribute any amounts that may become payable to you as a User hereunder in monthly installments of amounts not less than $200. Any amounts due to you shall not accrue any interest. Payments may be made pursuant to a written check, wire, paypal (or other similar online payment site), debit or prepaid credit card, or other commercially reasonable method selected at the sole discretion of Kluster. You acknowledge and agree that you be responsible for all taxes due on any payments made to you in connection with your participation on the NAMETHIS.COM Site. The Company will be under no obligation to make any payments to you unless you have properly completed the information required in your User the registration process related to backup withholding taxes. On an annual basis, Kluster reserves the right to reset all User accounts below $100 to $0 and to write off all such unpaid amounts and Kluster shall have no liability for any such write-offs. Kluster also reserves the right to withhold or forfeit payments due to any User that has breached these NAMETHIS.COM Terms of Use or the General Terms, any of the other guidelines related to use of the NAMETHIS.COM Site or any other Kluster web site. Submitting Content that infringes the intellectual property rights of any third party may, at Kluster’s sole discretion, result in a forfeiture of all amounts owed by Kluster to you.
Service Interruptions and NAMETHIS.COM Site Changes.
Kluster reserves the right to interrupt the NAMETHIS.COM Site with or without prior notice for any reason or no reason. You agree that Kluster will not be liable for any interruptions of the NAMETHIS.COM Site, or any delays or failure to perform. Kluster has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the NAMETHIS.COM Site as it sees fit in its sole discretion.
Ownership of Content.
The Company and each User that is a party to these NAMETHIS.COM Term of Use acknowledges and agrees that, subject to the terms and conditions of these NAMETHIS.COM Terms of Use, Users may retain any and all applicable copyright and other Intellectual Property Rights with respect to any Original User Content that you create or submit using the NAMETHIS.COM Site, to the extent you have such rights under applicable law.
Notwithstanding the foregoing, in consideration for the chance to receive a portion of the applicable User Allocation of Naming Fees, you hereby grant (and you represent and warrant that you have the right to grant) to the Company: (a) a royalty-free, worldwide, fully paid-up, irrevocable, non-exclusive right and license to use, reproduce and distribute via the NAMETHIS.COM Site any Content that you submit to the NAMETHIS.COM Site, (b) the perpetual and irrevocable right to delete any or all of the Content that you submit to the NAMETHIS.COM Site from our servers and from the NAMETHIS.COM Site, for any reason or no reason, whether intentional or unintentional, and, without any liability of any kind to you or any other party; and (c) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your Content as the Company may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the NAMETHIS.COM Site. Further, you agree to grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth below, including the incorporation by reference of terms posted at [www.kluster.com/home/terms].
In the event that any Content provided by you is selected by User participation via the NAMETHIS.COM Site to be a Selected Name, then in consideration for a portion of the applicable User Allocation of Naming Fees you: (i) hereby by this Agreement hereby irrevocably assign to the applicable Project Sponsor any and all Intellectual Property Rights that you may have in such Content; (ii) to the extent such assignment is not otherwise effective to fully vest in the Project Sponsor all right, title and interest in such Content you hereby grant to the applicable Project Sponsor an exclusive, worldwide, perpetual, fully-paid up, royalty-free, transferable right and license, with the right to sublicense, to reproduce, publicly display, distribute, and perform, transmit, edit, modify, create derivatives works of, publish, sell, exploit, use, and dispose of such Content for any purpose and in all forms and all media whether now known or to become known in the future, the right to retain all revenue and income derived therefrom, and any and all other related rights of whatever kind or nature; and (iii) waive and agree never to assert any and all Moral Rights you may have in or with respect to any such Content in connection with Project Sponsor’s use thereof, even after termination of these NAMETHIS.COM Terms of Use. At the request of Project Sponsor, and at no additional charge, you hereby covenant and agree to execute, acknowledge and deliver any and all documents or instruments that the Project Sponsor may determine necessary, in its reasonable discretion, to fully assign any and all Intellectual Property Rights that you may have in such Content to the Project Sponsor; provided, however, the License shall be effective regardless of whether any such additional documents are executed. In the event the Company is unable for any reason, after reasonable effort, to secure your signature on any document needed in connection with the actions or grants specified herein, you hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as your agent and attorney in fact, which appointment is coupled with an interest, to act for and in your behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the License with the same legal force and effect as if executed by you. You further acknowledge and agree that any compensation that you might receive as a result of submitting such Content, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting Content on the NAMETHIS.COM Site.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the NAMETHIS.COM Site, including without limitation any legal consequences relating to your or any other Person’s Intellectual Property Rights or Proprietary Information; and (iii) Kluster’s acknowledgement hereunder of your Intellectual Property Rights in your User Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company’s intention not to require Users of to forego certain Intellectual Property Rights with respect to Content they submit to the NAMETHIS.COM Site, subject to the terms of these NAMETHIS.COM Terms of Use, including without limitation each User’s agreement to assign all right, title and interest in Content as provided herein.
Kluster retains ownership of User account data, regardless of any Intellectual Property Rights in User Content. You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to User Content that is submitted on the NAMETHIS.COM Site, you do not own the account you use to access the NAMETHIS.COM Site, nor do you own any data Kluster stores on its servers (including without limitation any data representing or embodying any or all of your User Content). Your Intellectual Property Rights in any User Content, if any, do not confer any rights of access to the NAMETHIS.COM Site, the Publication or any rights to data stored by or on behalf of the Company.
Trademarks
ILLUMINATOR™, KLUSTER™, WOULDN’T IT BE COOL IF….™, and BE A PART, NOT APART. ™ and other Kluster graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Kluster in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Kluster and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Conduct by Users; Prohibited Conduct
You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the NAMETHIS.COM Site any Content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, a Kluster employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the NAMETHIS.COM Site any Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the NAMETHIS.COM Site any Content as determined by Kluster at its sole discretion that is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, causes tort, or is racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the NAMETHIS.COM Site any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or upload, post, email or otherwise transmit to or via the NAMETHIS.COM Site any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the NAMETHIS.COM Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the NAMETHIS.COM Site or servers or networks connected to the NAMETHIS.COM Site, or disobey any requirements, procedures, policies or regulations of networks connected to the NAMETHIS.COM Site; (ix) attempt to gain access to any other User’s account or password; or (x) "stalk", abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the NAMETHIS.COM Site; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the NAMETHIS.COM Site or any of its algorithms that are utilized to choose Selected Names, allocate Watts or allocate the User Allocation of Naming Fees. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any amounts otherwise due to you from the Company.
Copyright Infringement Complaints
We respect the intellectual property rights of others and we prohibit Users from uploading, posting or otherwise transmitting on the NAMETHIS.COM Site any materials that violate another party's Intellectual Property Rights or that constitutes another Person’s Proprietary Information. Any infringing materials posted by any User can be identified and removed pursuant to Kluster’s compliance with the Digital Millennium Copyright Act (the “DMCA”) and the Company’s compliance process listed at [www.kluster.com/home/dmca], and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Kluster has adopted a policy of terminating, in appropriate circumstances and at Kluster’s sole discretion, Users who are deemed to be repeat infringers. Kluster may also at its sole discretion limit access to the NAMETHIS.COM Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights or who disclose Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise are or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.
Monitoring User Content
Kluster is not responsible or liable in any manner for any User Content posted on the NAMETHIS.COM Site. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post, transmit or share on the NAMETHIS.COM Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the NAMETHIS.COM Site or in connection with any User Content. The Company is not responsible for the conduct, whether online or offline, of any User of the NAMETHIS.COM Site.
Disputes Between Users
As a condition of access to the NAMETHIS.COM Site, you release Kluster (and Kluster’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the NAMETHIS.COM Site; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any User Content that you may provide. You further understand and agree that: (a) Kluster will have the right but not the obligation to resolve disputes between Users relating to the NAMETHIS.COM Site, and Kluster’s resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Kluster elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the NAMETHIS.COM Site and will not make judgments regarding legal issues or claims; (c) Kluster’s resolution of such disputes will be final with respect to the NAMETHIS.COM Site and any allocation of Watts, or the allocation of any payments due to Users related to the foregoing, but will have no bearing on any real-world legal disputes in which Users of the NAMETHIS.COM Site may become involved; and (d) you hereby release Kluster (and Kluster’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Kluster’s resolution of disputes relating to the NAMETHIS.COM Site.
All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer
When using the NAMETHIS.COM Site, you may accumulate Content, Watts, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON KLUSTER’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN KLUSTER’S SOLE DISCRETION. Notwithstanding the foregoing, the NAMETHIS.COM will maintain back-up records related to any actual accumulated unpaid cash amounts earned by Users, and to the extent such information is deleted or otherwise altered, the Company will use its best efforts to accurately recreate such information to satisfy its payment obligations.
YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO CONTENT YOU POST ON THE NAMETHIS.COM SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, KLUSTER DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY’S SERVERS.
YOU UNDERSTAND AND AGREE THAT KLUSTER HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.
All Services are Provided "as is" Without Express or Implied Warranties. KLUSTER PROVIDES THE NAMETHIS.COM SITE YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the NAMETHIS.COM Site or your account, and you understand that you shall not be entitled to make any claim based on Kluster’s failure to provide any of the foregoing other than as explicitly provided in these NAMETHIS.COM Terms of Use. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
Kluster’s liability to you is expressly limited, to the extent allowable under applicable law. IN NO EVENT SHALL KLUSTER OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE PUBLICATION OR THE NAMETHIS.COM SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THESE NAMETHIS.COM TERMS OF USE, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL KLUSTER’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Kluster cannot be held responsible or liable for anything that occurs or results from accessing, or participating on the NAMETHIS.COM Site.
Indemnification.
You hereby agree to defend, indemnify and hold harmless Kluster, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, Project Sponsors and other Users of the NAMETHIS.COM Site, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of these NAMETHIS.COM Terms of Use by you, or from your use of the NAMETHIS.COM Site. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any claims by third parties that your activity on the NAMETHIS.COM Site or Content infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
Privacy Policy
The personal information you provide to us during registration is used for the Company’s internal purposes only. Kluster uses the information it collects to learn what you like and to improve the NAMETHIS.COM Site and Publication. Kluster will not give any of your personal information to any third party without your express approval except: as reasonably necessary to fulfill your service request, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to comply with tax and other applicable law; as otherwise expressly permitted by these NAMETHIS.COM Terms of Use or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect the Company, its agents and other users of the NAMETHIS.COM Site. Kluster does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Kluster can (and you authorize Kluster to) disclose any information about you to private entities, law enforcement agencies or government officials, as Kluster, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Kluster may communicate with you via email and any similar technology for any purpose relating to the NAMETHIS.COM Site. You agree to read the disclosures and be bound by the terms of the additional Privacy Policy information posted on our website at [www.kluster.com/home/dmca]. You acknowledge and agree that Kluster, in its sole discretion, may track, record, observe or follow any and all of your interactions within the NAMETHIS.COM Site. The Company may share general, demographic, or aggregated information with third parties about our user base and NAMETHIS.COM Site usage, but that information will not include or be linked to any personal information without your consent.
Dispute Resolution; Governing Law; Venue and Jurisdiction
By visiting or using the NAMETHIS.COM Site, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these NAMETHIS.COM Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of Vermont, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Vermont.
YOU AND THE COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE NAMETHIS.COM SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE NAMETHIS.COM TERMS OF USE, THE NAMETHIS.COM SITE (INCLUDING YOUR VISIT TO OR USE OF THE NAMETHIS.COM SITE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's Intellectual Property Rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the NAMETHIS.COM Site (including your visit to or use of the NAMETHIS.COM Site) be instituted more than three (3) years after the cause of action arose.
General Provisions
The NAMETHIS.COM Site is controlled and operated by Kluster from its offices within the State of New York, United States of America. The Company makes no representation that any aspect of the NAMETHIS.COM Site is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the NAMETHIS.COM Site from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to NAMETHIS.COM Site and its use. The Company’s failure to act with respect to a breach by you or others does not waive Kluster’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Kluster under these NAMETHIS.COM Terms of Use shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Kluster’s rights and obligations under these NAMETHIS.COM Terms of Use may be assigned to a subsequent owner or operator of the NAMETHIS.COM Site in a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer these NAMETHIS.COM Terms of Use or any or all of your rights hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in these NAMETHIS.COM Terms of Use, no default, delay or failure to perform on the part of Kluster shall be considered a breach of these NAMETHIS.COM Terms of Use if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Kluster.
These NAMETHIS.COM Terms of Use, including the General Terms, sets forth the entire understanding and agreement between you and Kluster with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of these NAMETHIS.COM Terms of Use. If any provision of these NAMETHIS.COM Terms of Use shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Kluster may give notice to you by means of a general notice on our website at [www.kluster.com/home/contact], by electronic mail to your e-mail address in our records for your account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your account. All notices given by you or required under these NAMETHIS.COM Terms of Use shall be mailed to us at: Kluster, Inc., [One Mill Street, Burlington VT 05401] with a copy to Merritt & Merritt & Moulton, P.O. Box 5839, Burlington, VT 05402.
