The Sites (including past, present and future versions) and all materials that are included in or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; content; instructions; images; audio; videos; designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Sites; the compilation, assembly and arrangement of the materials of the Sites; and all other materials related to the Sites (collectively, the “Materials”) are owned, controlled or licensed by McCall Farms, Inc. and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by McCall Farms, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under this Terms are hereby reserved for McCall Farms and/or its parent, subsidiaries, affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way McCall Farms’ rights to exploit fully any or all of the Materials. You agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Materials, or take any action whatsoever in derogation of McCall Farms’ rights therein, or in breach of, any terms and conditions contained in this Terms. You acknowledge and agree that you will not acquire or claim any rights in the Materials, or aid or abet anyone else in doing so.
The entire contents of the Sites (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, McCall Farms owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Sites. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks on the Sites are the service and trademarks of McCall Farms or affiliated companies. Without McCall Farms’ prior written permission, you shall not display, reproduce, or use, in any manner any such marks; nevertheless, all goodwill associated with any use by you thereof will insure exclusively to McCall Farms or their respective owners. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of McCall Farms, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the Sites.
You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (b) fail to follow the instructions provided on the Sites in a “robots.txt” file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these Terms or McCall Farms without the prior written consent of McCall Farms.
The Sites may provide you and others with the opportunity to participate in forums, blogs, message boards and other communication functionality (collectively, “User Forums”) and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to McCall Farms or the Sites, including, without limitation, photographs, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, “User Content”).
TERMS APPLICABLE TO USER CONTENT.
LICENSE TO MCCALL FARMS FOR USER CONTENT.
You grant to McCall Farms the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, formula or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that McCall Farms is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Sites or McCall Farms, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without compensation of any kind. You further perpetually and irrevocably grant McCall Farms the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or compensation to you. You also grant to McCall Farms the right to sub-license and authorize others to exercise any of the rights granted to McCall Farms under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to McCall Farms under these Terms. You further authorize McCall Farms to publish your User Content in a searchable format that may be accessed by users of the Sites and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
MCCALL FARMS’ OBLIGATIONS REGARDING USER CONTENT.
You agree that McCall Farms has no obligation to pre-screen, monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees’ licensed rights to your User Content. You further acknowledge and agree that McCall Farms will not have any obligation to, but may review, monitor, display, accept or exploit any User Content and McCall Farms may, in its sole discretion, delete, edit, distribute, move, block access, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that McCall Farms reserves the right to treat User Content on the Sites, or on certain portions of the Sites, as content stored at the direction of users for which McCall Farms will not exercise editorial control except to enforce the rights of third parties and the content restrictions set forth in our User Forums Rules when notice of such violations are directed to McCall Farms’ attention. User Content posted may not be maintained on the Sites by us for any period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You agree and understand that McCall Farms is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
YOUR OBLIGATIONS REGARDING USER CONTENT.
You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content. As McCall Farms may not pre-screen User Content, you bear legal responsibility for others’ exposure to any offensive indecent or objectionable content in User Content.
PRODUCT SUBMISSIONS PROHIBITED.
McCall Farms does not accept unsolicited submissions for web sites, products or services. It is our intent to avoid the possibility of future misunderstandings when projects developed by or on behalf of McCall Farms (whether internally or by third parties) might seem to others to be similar to their own creative ideas or materials. Therefore, please do not make any such unsolicited submissions to McCall Farms through the Sites, including through User Forums. However, if you decide to make any such unsolicited submission, you hereby grant to McCall Farms the right and license as if it were User Content as specifically set forth above.
As a user of the Sites, you agree that these User Forums Usage Rules (“Rules”) are here to help you understand the conduct that is expected of individuals who participate in User Forums. Your participation in the User Forums is subject to all the Terms, including these Rules. We reserve the right, in our sole discretion, to monitor and screen all User Content submitted to the Sites and may disregard any User Content that, in our sole discretion, violates these Rules or the Terms, or that we otherwise find objectionable. Please follow these Rules as you upload any User Content:
All User Content must be original with you, not copied from someone else’s work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Sites and elsewhere.
If you choose to upload photos to the Sites, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know – but only with their express permission to submit it, and if that person is a minor in the jurisdiction in which they live, with the express permission of his/her parent or legal guardian.
Express yourself with non-offensive individual self-expression. Be respectful of others’ opinions and comments so we can continue to build User Forums for everyone to enjoy. If you think your User Content might offend someone or be embarrassing to someone chances are it probably will and it doesn’t belong on the Sites. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, religion, gender, sexual preference or physical or mental disability or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit. If you discover content that violates these Terms, you may report such abuse by clicking on the “report abuse” buttons located throughout the Sites.
Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
Your User Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
Your User Content may not advertise or promote a product or service, other than a McCall Farms product or service. You may not use your User Content to raise money for anyone, any organization (including charitable organizations), any business or for a pyramid or other multi-tiered marketing scheme.
Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don’t upload or post it. If you do upload or post User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
We hope that you will use the User Forums to exchange information and content and have discussions with other members. However, please remember that the User Forums is a public forum and User Content that you post on the User Forums will be accessible and viewable by other users. Do not post personal information (e.g., first and last name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
Your User Content may not reveal another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
User Content may not upload viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Sites or any computer system. We reserve the right to request at any time proof of the permissions referred to above in the sections starting “User Content must be yours”, “No pictures or images of anyone but you and your friends and family” and “Does your User Content contain music?” in a form acceptable to us. Failure to provide such proof may, if requested, lead to the User Content in question being removed from the Sites.
You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (text at http://www.copyright.gov), McCall Farms has a designated agent for receiving notices of copyright infringement and we follow the notice and take down procedures of the DMCA. We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide McCall Farms’ copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Here is the contact information for our DMCA agent:
McCall Farms Foods, Inc., 6615 S. Irby Street, Effingham, SC 29161
It is often difficult to determine if your intellectual property rights have been violated. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
OTHER IP INFRINGEMENT.
If you believe that any entry infringes any of your other intellectual property rights (other than copyright) and wish to report it, you can do so by email to firstname.lastname@example.org.
Certain areas of the Sites may require registration or may otherwise ask you to provide information to participate in certain features, such as our User Forums, in order to receive newsletters or updates or to access certain Materials or post User Content. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Materials or User Content or participate in certain features of the Sites. When you provide information to the Sites, you agree to provide only true, accurate, current and complete information.
If you register on the Sites and/or create a personal profile, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Sites using your name in whole or in part. McCall Farms reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms in your jurisdiction where you reside and to comply with these Terms; (ii) all information you provide to McCall Farms is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. You also agree that you will be responsible for obtaining and maintaining all modem, telecommunications equipment, computer hardware, wireless devices and other equipment needed for access to and use of the Sites and you will be responsible for all charges related thereto.
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
The Sites may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules that describe the sweepstakes, contest or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes, contest or promotion.
McCall Farms grants you the revocable permission to link to the Sites; provided, however, that your web site, or any third party web sites that link to the Sites: (a) may only link to a Site’s home page unless McCall Farms has provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (c) must not imply that McCall Farms or the Sites are endorsing or sponsoring it or its products, unless McCall Farms has given its prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in McCall Farms’ sole opinion, harm McCall Farms or its products or services; (e) must not use any McCall Farms trademarks without the prior written permission from McCall Farms; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in McCall Farms’ sole opinion); and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, McCall Farms reserves the right to prohibit linking to the Sites for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
The Sites may offer features and services that are available to you via your mobile phone. These features and services may, include, without limitation, the ability to upload content to the Sites, receive messages from the Sites, download applications to your mobile phone or access the Sites’ features (collectively, the “Mobile Features”). Standard messaging, data and other fees may be charged by your carrier to participate in Mobile Features. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
TERMS OF MOBILE FEATURES.
You agree that the Mobile Features for which you are registered may send communications to your mobile device. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify McCall Farms of any changes to your mobile number and update your account on the Sites to reflect this change.
Any items that we make available for download or use from the Sites and/or our servers (the “Downloadable Items”) are the copyrighted work of McCall Farms or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Sites, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
THE SITES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MCCALL FARMS AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “MCCALL FARMS PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITES; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM MCCALL FARMS OR VIA THE SITES. IN ADDITION, THE MCCALL FARMS PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE MCCALL FARMS PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE.THE MCCALL FARMS PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE MCCALL FARMS PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE MCCALL FARMS PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS. BY ACCESSING OR USING THE SITES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
LIMITATIONS OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL THE MCCALL FARMS PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITES; (B) THE MATERIALS; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE MCCALL FARMS PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITES’ TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE MCCALL FARMS PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITES). IN NO EVENT WILL THE MCCALL FARMS PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES, COUNTRIES, PROVINCES AND TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE MCCALL FARMS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00 USD).
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE MATERIALS.
WAIVER OF UNKNOWN CLAIMS.
BY ACCESSING THE SITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend (if requested by McCall Farms), indemnify and hold harmless the McCall Farms Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Sites or activities in connection with the Sites; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer or other device used to access the Sites, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the McCall Farms Parties’ use of your information. You will cooperate as fully required by the McCall Farms Parties in the defense of any claim. Notwithstanding the foregoing, the McCall Farms Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The McCall Farms Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the McCall Farms Parties.
McCall Farms reserves the right to terminate your access to and use of the Sites at any time, in its sole discretion, without notice and liability, including, without limitation, if McCall Farms believes your conduct fails to conform with these Terms. McCall Farms also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Sites or McCall Farms. Any violation, or potential violation, of these Terms may be referred to law enforcement authorities.
McCall Farms reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials available on the Sites, without limitation, in whole or in part, including the cessation of all activities associated with the Sites, with or without notice. You agree that McCall Farms will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites or any part thereof.
WHAT HAPPENS UPON TERMINATION?
Upon termination of your access to the Sites, or upon demand from McCall Farms, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Sites, including links to the Sites; and (b) destroy all Materials obtained from the Sites and all related documentation.
LOCATION OF SITES.
The information provided on the Sites is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject McCall Farms to any registration requirement within such jurisdiction or country. McCall Farms controls and operates the Sites from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. Anyone using or accessing the Sites from other locations does so on his or her own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Sites and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
Software related to or made available by the Sites may be subject to United States export controls. Thus, no software from the Sites may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Sites, 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.
THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITES, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN FLORENCE COUNTY, SOUTH CAROLINA AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN FLORENCE COUNTY, SOUTH CAROLINA FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
NO CLASS ACTIONS.
To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Sites will be resolved individually, without resort to any form of class action.
McCall Farms reserves the right to modify or add to these Terms or any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the home page of the Sites, and that your use of the Sites after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the Sites. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Sites from that point forward.
The failure of McCall Farms to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit McCall Farms rights with respect to such breach or any subsequent breaches. No waiver by McCall Farms of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of McCall Farms. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. McCall Farms may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without McCall Farms’ prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against McCall Farms by virtue of having drafted them.