MODRIA TERMS OF SERVICE
Last Updated Date: 5/18/2012
Key Content-related Terms
“Content” means text, graphics, images, music, software, audio, video, information or other materials.
“Modria Content” means Content that Modria makes available through the Site or Services, including any Content licensed from a third party, but excluding Member Content.
“Member” means a person who completes Modria’s account registration process, as described under the “Account Registration” section below.
“Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site or Services.
“Collective Content” means, collectively, Modria Content and Member Content.
Certain areas of the Site (and your access to or use of certain Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Collective Content, as applicable.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES,OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Modria reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Servicesor to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Servicesby anyone under 18 is expressly prohibited. By accessing or using the Site or Servicesyou represent and warrant that you are 18 or older.
Via the Site and Services, Members can utilize the tools made available by Modria to resolve disputes with other Members and third parties (“Disputes”). If you file a Dispute via the Site and Services, we will attempt to contact and encourage the other party to the Dispute to respond to your filing. You can then try to settle your Dispute through the Site and Services. If you are unable to resolve a dispute by communicating with a party independently via the Site and Services, Members can choose to access the services of third party neutrals such as arbitrators and dispute resolution experts to help resolve Disputes (“Neutrals”). Use of a Neutral may incur additional fees. Please see http://www.modria.com/contact/ for more information on fees for use of the Site and Services. If a resolution cannot be reached through the use of a Neutral, the Neutral will recommend a solution. Members can also upload Member Content related to disputes and share such Member Content with other Members or Neutrals by making selections via the Site and Services.
Please note that the Site and Services are merely a platform to assist Members in resolving Disputes, and Modria is not a party to any disputes between Members or between Members and third parties. Modria does not guarantee that all disputes will be resolved through the use of the Site or Services. ACCORDINGLY, YOU UNDERSTAND AND AGREE THAT MODRIA WILL HAVE NO LIABILITY RELATED TO DISPUTES AND DISCLAIMS ANY AND ALL LIABILITY IN THIS REGARD.
In order to access certain features of the Site and Services and to post any Member Content on the Site or through the Services you must register to create an account (“Account”) and become a Member. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Modria reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Modria of any unauthorized use of your Account.
Account Information and Payment Terms
Modria makes certain features of the Services available without charge. However, if you choose to utilize any paid features of the Services, you authorize Modria or its third party payment processor to charge your method of payment in the amount of any paid features of the Services that you choose to utilize. More information related to paid features of the Services is accessible at http://www.modria.com/contact/. In connection with such paid featuers, when you register for an Account, you may be required to provide customary billing information such as name and billing address. You agree to pay the applicable fees and any taxes and other fees that may accrue in relation to your use of the Site and Services, if any. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
The Site, Services and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services and Modria Content, including all associated intellectual property rights, are the exclusive property of Modria and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Collective Content.
Licenses Granted by Modria to Modria Content and Member Content
Subject to your compliance with the terms and conditions of these Terms, Modria grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Modria Content solely for your personal and non-commercial purposes; and (ii) a to view any Member Content of other Members to which you are permitted access solely for your internal purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Modria or its licensors, except for the licenses and rights expressly granted in these Terms.
License granted by Member
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site or Services, you hereby grant to Modria a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content only on, through or by means of the Site or Services and only in the course of providing the Site and Services., Modria does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Modria and to the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Modria’s use of the Member Content (or any portion thereof) on, through or by means of the Site or Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site or Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or through the http://www.modria.com/contact/ section of the Site. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Site, or any individual element within the Site or Services, Modria’s name, any Modria trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Modria’s express written consent;
- Access, tamper with, or use non-public areas of the Site, Modria’s computer systems, or the technical delivery systems of Modria’s providers;
- Attempt to probe, scan, or test the vulnerability of any Modria system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Modria or any of Modria’s providers or any other third party (including another user) to protect the Site, Services or Collective Content;
- Attempt to access or search the Site, Services or Collective Content or download Collective Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Modria or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Modria trademark, logo URL or product name without Modria’s express written consent;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Collective Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services;
- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation;
- Use the identity of any third party; or
- Encourage or enable any other individual to do any of the foregoing.
Modria will have the right to investigate violations of any of the above to the fullest extent of the law. Modria may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Modria has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Modria reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Modria, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.
Modria respects copyright law and expects its users to do the same. It is Modria’s policy to terminate in appropriate circumstances Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Modria’s Copyright Policy at http://www.modria.com/copyright-policy, for further information.
The Site or Services may contain links to third-party websites or resources. You acknowledge and agree that Modria is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Modria of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Modria will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Modria reserves the right to revoke your access to and use of the Site, Services and Collective Content at any time, with or without cause. In the event Modria terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to email@example.com.
THE SITE, SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MODRIA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MODRIA MAKES NO WARRANTY THAT THE SITE, SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MODRIA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES. MODRIA DISCLAIMS ANY AND ALL LIABILITY RELATED TO INTERACTIONS WITH OR ACTIONS OF ANY NEUTRALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MODRIA OR THROUGH THE SITE, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT MODRIA DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICES, NOR DOES MODRIA MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. MODRIA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Modria, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER Modria NOR ANY OTHER person or entity involved in creating, producing, or delivering the Site, Services or Collective Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the Site, Services or Collective Content, [OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF the SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not MODRIA has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. In no event will Modria’S aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT, INCLUDING INTERACTIONS WITH OR ACTIONS OF ANY NEUTRALS, EXCEED THE AMOUNTS YOU HAVE PAID TO MODRIA FOR USE OF THE SITE, SERVICES OR COLLECTIVE CONTENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO LIABILITY, IF YOU HAVE MADE ANY PAYMENTS TO MODRIA, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENTS TO MODRIA, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODRIA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Modria used herein are trademarks or registered trademarks of Modria. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Modria and you regarding the Site, Services and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Modria and you regarding the Site, Services and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Modria’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Modria may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Modria via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Modria agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Modria are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Modria otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the International Institute for Conflict Prevention and Resolution (“CPR”) in accordance with the Commercial ADR Rules then in effect, except as modified by this “Dispute Resolution” section. (The ADR Rules are available at http://cpradr.org/Resources/ADRTools/ADRRulesEthicsCodes.aspx or by calling CPR at 212-849-6490.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a notice of arbitration as specified in the CPR Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the CPR’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the notice of arbitration, then the CPR will appoint the arbitrator in accordance with the CPR Rules.
Arbitration Location and Procedure. Unless you and Modria otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Modria submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the CPR Rules. Subject to the CPR Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the CPR Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Modria will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any CPR filing, administrative and arbitrator fees will be solely as set forth in the CPR Rules. However, if your claim for damages does not exceed $75,000, Modria will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Modria changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Modria’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Modria in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Modria to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Modria. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Modria at:
100 West San Fernando Street