Experticity acquires content in a variety of ways, including (1) content published by individuals provided directly to Experticity subscribers; (2) content uploaded by individuals via the Brand Ambassador Portal specific to each Experticity subscriber, located at http://ambassadors.Experticity.com; (3) content uploaded by individuals via the Experticity Uploader Tool; (4) content generated via contests or sweepstakes and subject to separate terms and conditions; and (5) content shared via social networks on the Internet. The Experticity Website and Experticity Services allow users to submit user photos, graphics, audio, video, comments and other materials (“Content”) and may include links to third party websites.
In order to access some features of the Experticity Website and/or Experticity Services, you will have to create a member account (“Account”).
You can access and modify the configuration information you provide to Experticity at any time by signing-in to your Account.
You can access and/or delete the information collected on your behalf by Experticity or uploaded via the Experticity Services at any time by signing-in to your Account. You are responsible for approving all Content used by you via Experticity.
You will be responsible for any Content you share via your social accounts which is collected by Experticity and uploaded to your Account.
If Experticity requests registration information from you, you must provide us with true, accurate, current, and complete information. You must promptly update your registration to keep it accurate, current, and complete. You may not use anyone else’s password or Account. You are responsible for maintaining the confidentiality of your Accounts and passwords. You agree to immediately notify us of any unauthorized use of your passwords or Accounts or any other breach of security. You acknowledge that failure to exit from your Accounts at the end of each session may result in unauthorized use of your Accounts. Experticity is not responsible for any loss or damage that may result if you fail to comply with these requirements.
You agree that as a Brand Ambassador, you may be required to undertake certain training on best practices and compliance-related matters regarding the Content you provide. You also agree and consent to Experticity and its employees reserving the right to remove Content that is infringing or otherwise not within the usage guidelines provided to you at the time of registration as a Brand Ambassador.
If Experticity requests registration information from you as a Brand Ambassador, you must provide us with true, accurate, current, and complete information. You must promptly update your registration to keep it accurate, current, and complete. You may not use anyone else’s password or Brand Ambassador Log-In. You are responsible for maintaining the confidentiality of your Brand Ambassador Log-Ins and passwords. You agree to immediately notify us of any unauthorized use of your passwords or Brand Ambassador Log-Ins or any other breach of security. You acknowledge that failure to exit from your Brand Ambassador Log-In at the end of each session may result in unauthorized use of your Brand Ambassador Log-In. Experticity is not responsible for any loss or damage that may result if you fail to comply with these requirements.
By posting or submitting Content via the Experticity Services or this Experticity Website, including without limitation the Brand Ambassador Portal, (collectively “User Content”), you grant Experticity and each user of the Experticity Website and/or Experticity Services, including their respective affiliates and licensees, a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, fully paid-up, transferable license, with the right to sublicense (through multiple tiers), to access, use, copy, publicly perform, digitally perform, publicly display or otherwise exhibit and distribute (through multiple tiers) such contributed content, and to transmit, sell, modify, create derivative works from and/or to incorporate such contributed content into other works in any form, medium or technology, whether now known or hereafter developed, in each case, for any purpose whatsoever, commercial or otherwise, without compensation to you or any third party. You agree to waive any moral rights that you may have to your contributed content.
The User Content that you submit is deemed non-confidential and neither Experticity nor any user of the Experticity Website and/or Experticity Services has any obligation to maintain the confidentiality of any User Content.
You represent and warrant to Experticity that you have the full legal right, power and authority to grant to Experticity the rights and license provided for herein, that you own or control the complete exhibition and other rights to the User Content you submitted for the purposes contemplated in this license and that you have properly received releases from every third party required to provide consent for the use of his or her image and likeness. You represent and warrant to Experticity that you will not contribute any User Content that: (a) infringes, violates or otherwise interferes with any intellectual property right of another party; (b) reveals any trade secret, unless you own the trade secret or have the owner’s permission to reveal it; (c) infringes on the privacy or publicity rights of another; (d) is libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party; or (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.
You are solely responsible for any User Content that you submit. You may be held legally liable for the User Content that you submit and may be held legally liable if your submissions include, for example, defamatory comments or material protected by copyright, trademark, patent or trade secret law or other proprietary right without permission of the author or owner.
Experticity (and users of the Experticity Services) are not obligated to use any User Content submitted by you in any manner.
Third Party Services
The Experticity Website and/or Experticity Services may also include a tool that allows you to sign in or register using information from your account with a third party service, such as Facebook, Instagram, Google, LinkedIn, or Twitter. These third party services are unrelated to the Experticity Website and Experticity Services, and your login using such third party registration information and use of such third party services is subject to the terms and policies of those services.
Experticity reserves the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with your creative submission, and Experticity and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in these additional terms obligates or may be deemed to obligate Experticity to sell, license or offer to sell or license any advertising, promotion or distribution rights on your behalf.
Additional Terms Applicable to Users of the Experticity Uploader Tool
While using the Experticity Website and/or the Experticity Services, including but not limited to the Experticity Uploader Tool, you will not:
- Violate any laws, third party rights, or Experticity policies.
- Transfer your Account to another party without Experticity’s explicit consent.
- Distribute or post spam, chain letters, or pyramid schemes
- Distribute viruses or any other technologies that may harm Experticity, the Experticity Website, the Experticity Services, or the interests or property of users of the
- Experticity Website or the Experticity Services.
- Take any action that imposes or may impose (in Experticity’s sole discretion) an unreasonable or disproportionately large load on Experticity’s infrastructure.
- Use any Experticity copyrights and trademarks.
- Use, copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the Experticity Website and/or Experticity Services without the prior express written permission of Experticity and the appropriate third party, as applicable.
- Interfere or attempt to interfere with the proper working of the Experticity Website and/or Experticity Services, any third party sites or any activities conducted on any such sites.
- Bypass any security measures Experticity may use to prevent or restrict access to the Experticity Website and/or Experticity Services.
- Violate any other written requirements provided by Experticity (as modified by Experticity from time to time).
- Use disparaging, harassing, bullying or derogatory language to anyone, including protected parties based on class and gender.
- Use or launch any automated system, including without limitation, “robots”, “spiders”, “offline readers”, etc., that accesses the Experticity Website in a manner that sends more request messages to the Experticity servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Experticity grants the operators of public search engines permission to use spiders to copy materials from the Experticity Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Experticity reserves the right to revoke these exceptions either generally or in specific cases.
- Collect or harvest any personally identifiable information, including account names, from the Experticity Website, nor to use the communication systems provided by the Experticity Website for any commercial solicitation purposes.
- Copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or software underlying our sites or the Experticity Services. You agree not to modify the software underlying our sites in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to our sites.
Experticity reserves the right to remove any content, including but not limited to User Content, from the Experticity Website and the Experticity Services at any time, for any reason. Experticity respects the intellectual property of others, and requires you to do the same.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE.
In operating the Experticity Website, we may act as a “services provider” (as defined by DMCA) and offer services as an online provider of materials and links to third party web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Experticity Website. Experticity has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Experticity Website. Experticity has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Experticity or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of this Agreement. If you believe any material available via the Experticity Website infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is Srinivas Penumaka, 1600 A El Camino Real, San Carlos, CA 94070, 888-998-7412 or privacy@Experticity.com.
Please provide the following notice:
- Identify the copyrighted work or other intellectual property that you claim has been infringed;
- Identify the material on the Experticity Website that you claim is infringing, with enough detail so that we may locate it on the Experticity Website;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
- Your address, telephone number, and email address; and
- Your physical or electronic signature.
We may give notice to our users of any infringement notice by means of a general notice on any of our websites, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.Content Linked to by Experticity
You may not distribute any content, including User Content, from the Experticity Website without written consent from Experticity. If you want to make commercial use of the Experticity Service, you must enter into an agreement with Experticity to do so in advance.
Representations and Warranties
You represent and warrant that:
(b) Any content posted, uploaded and/or shared by you, including without limitation User Content, and the use of such content as contemplated herein, complies with all applicable laws and regulations and you have obtained all necessary permissions, including consents and releases, from required or necessary third parties to so use such content;
(c) Any content posted, uploaded and/or shared by you, including without limitation User Content, and the use of such content as contemplated herein, does not and will not violate any third party intellectual property rights, or other third party proprietary, privacy, personal or publicity right; and
(d) All information provided to Experticity by you is accurate, complete, and current.
Disclaimer of WARRANTIES
EXPERTICITY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL DISPLAYED IN THE EXPERTICITY SERVICE PAGES. EXPERTICITY DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. EXPERTICITY DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL ON THE INTERNET THROUGH THE EXPERTICITY SERVICE.
THE EXPERTICITY WEBSITE AND EXPERTICITY SERVICES, AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED THEREIN ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER.
EXPERTICITY AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW:
(a) ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
(b) ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE EXPERTICITY WEBSITE AND EXPERTICITY SERVICES.
(c) ANY WARRANTY THAT YOUR USE OF THE EXPERTICITY WEBSTIE OR EXPERTICITY SERVICES WILL MEET YOUR REQUIREMENTS.
(d) ANY WARRANTIES THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE EXPERTICITY WEBSTIE OR EXPERTICITY SERVICES WILL BE ACCURATE OR RELIABLE.
(e) ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE EXPERTICITY WEBTSITE AND EXPERTICITY SERVICES.
(f) ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE EXPERTICITY WEBSITE OR EXPERTICITY SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE EXPERTICITY WEBSITE OR EXPERTICITY SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE EXPERTICITY WEBSITE OR EXPERTICITY SERVICE.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE EXPERTICITY WEBSITE AND EXPERTICITY SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISJNG OUT OF YOUR USE OF SUCH CONTENT, INCLUDING BUT NOT LIMITED DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA, AND DAMAGES RELATED TO VIOLATION OF THIRD PARTY RIGHTS.
You will indemnify, defend and hold Experticity harmless from any loss, liability, and expense (including reasonable attorneys’ fees) suffered or incurred because of any claims, proceedings or suits based on or arising out of (1) your use of the Experticity Website and/or Experticity Services, (2) your violation of the representations and warranties herein.
Limitation of Liability
IN NO EVENT SHALL EXPERTICITY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY DAMGAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY, PUNITIVE OR OTHER DAMAGES FOR ANY USER’S USE OR MISUSE OF OR RELIANCE ON THE EXPERTICITY WEBSITE AND/OR THE EXPERTICITY SERVICE OR ANY OTHER SERVICES OR WEBSITE LINKED THERETO (INCLUDING BUT NOT LIMITED TO INABILITY TO USE THE EXPERTICITY SERVICE, OR INTERRUPTION, SUSPENSION, OR TERMINATION OF THE EXPERTICITY SERVICE, INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), OR ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THIS LIMITATION SHALL APPLY WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF EXPERTICITY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE EXPERTICITY SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE EXPERTICITY SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE EXPERTICITY SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE EXPERTICITY SERVICE.
THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA.
THIS LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE EXPERTICITY SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE EXPERTICITY SERVICE.
SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Consumer Protection Laws
EXPERTICITY SERVICES ARE BUSINESS PRODUCTS, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTATED, IN NATURE. IN ACCEPTING THIS AGREEMENT, YOU RECOGNIZE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS DO NOT APPLY TO THE TRANSACTIONS CONTEMPLATED HEREBY.
Under no circumstances shall Experticity, its licensors or its Affiliates be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
U.S. Export Controls
Software from Experticity Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Experticity services or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury’s Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
If there is any dispute about or involving the Experticity services, you agree that any dispute shall be governed by the laws of the State of Washington without regard to conflict of laws provisions. Any dispute or claim arising from this Agreement or breach thereof shall be settled by binding arbitration conducted by JAMS/Endispute (“JAMS”) in accordance with the JAMS comprehensive Arbitration Rules and Procedures (“Rules”). The arbitration shall be heard by one arbitrator to be selected in accordance with the Rules, in King County, Washington. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. Within seven (7) calendar days after the appointment, the arbitrator shall set the hearing date, which shall be within ninety (90) calendar days after the filing date of the demand for arbitration. The parties agree to a mutual exchange of relevant documents and the taking of up to a maximum of five (5) depositions by each party to last no more than two (2) calendar days in aggregate for each party. Both parties waive the right, if any, to obtain any award for exemplary or punitive damages or any other amount for the purpose of imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to this Agreement, or any breach hereof, including without limitation any claim that said Agreement, or any part thereof, is invalid, illegal, or otherwise void or voidable. In addition to all other relief, the arbitrator shall have the power to award reasonable attorneys’ fees to the prevailing party. The arbitrator shall make his or her award no later than seven (7) calendar days after the close of evidence or the submission of final briefs, whichever occurs later. Notwithstanding anything to the contrary, if either party desires to seek injunctive or other equitable relief that does not involve the payment of money, then those claims shall be brought in a state or federal court located in King County, Washington, and the parties hereby irrevocably and unconditionally consent to personal jurisdiction of such courts and venues in any such action for injunctive or equitable relief.
The relationship of the parties to this Agreement shall be solely that of independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
You may not assign, sublicense, transfer, encumber or otherwise dispose of this Agreement without Experticity’s prior written approval.
Experticity may change, suspend or discontinue your use of the Experticity Website or Experticity Services for any reason at any time, including discontinuing the availability of any feature, database or content. Experticity has the right to terminate your Account with or without notice, without liability to you, any other user or any third party. All provisions of these Terms which by their nature should survive termination shall survive termination; including, but not limited to, intellectual property rights, limitation of liability, disclaimer of warranty and indemnification.