NewBay Media, L.L.C.
Terms and Conditions Terms of Use
Last Updated: March 6, 2007
This website is operated by, or on behalf of NewBay Media LLC
(“NewBay”) to users 13 years of age or older in the United States Please read
these Terms and Conditions of Use (“Terms and Conditions”) carefully. These
Terms of Use, including all documents referenced herein, represents the entire
understanding between NewBay and you regarding your use of this site and
supersedes any prior statements or representations. The site’s Privacy Policy is
incorporated into these Terms and Conditions by reference and is made a part
hereof.
Access, distribution and/or use of to this Site is subject to all applicable
laws and regulations. To the extent that access, distribution and/or use of this
Site would be deemed illegal by governing law, such access, distribution and/or
use is prohibited. By visiting any area on the NewBay Site you are deemed to
have accepted these Terms of Use. If you do not agree to abide by these Terms
and Conditions, please do not use this Site.
Use of Materials
All material on this Site, including but not limited to software, images,
music, text, “applets,” logos and trademarks, along with the overall “look and
feel” of the website (collectively referred to as the “Material”), is protected
under various intellectual property laws and owned or controlled by NewBay, or
used with permission of the owner(s) of such Material. Except as otherwise
indicated on this website, copying, reproduction, uploading, downloading,
transmitting or any other use of this site or of any of the Material, in whole
or part, without the express permission of NewBay, is prohibited. You may,
however, copy, reproduce, download, transmit and/or print individual pages
contained on this Site for your personal, non-commercial use, provided you agree
not to conceal, remove or alter any trademark, copyright or other notice
contained on: (i) this site; (ii) any of the Material; or (iii) any such
individual pages so copied, reproduced, downloaded, transmitted or printed. You
may not copy, reproduce, download transmit and/or print substantial portions of
this Site or the materials contained hereon without the express written
permission of NewBay. Any unauthorized use of this Site and/or the Materials may
subject the user to criminal prosecution and/or civil liability under applicable
law.
Privacy
Please see NewBay’s Privacy Policy. CLICK HERE for
information concerning the collection and use of Personal Consumer Information
from this site.
Links
From time to time, the NewBay website may contain links to other websites
that are not controlled and/or maintained by NewBay. Access to and use of such
other websites is at your own risk and subject to any terms, conditions and
privacy policies that govern such websites, which may be different from those of
NewBay and/or may provide their users with less security than the NewBay Site.
By providing such links, NewBay shall not be deemed to endorse, recommend,
approve or guarantee any third parties or their services or products, or any
facts, views, advice, information and/or products found on such websites. NewBay
is not responsible for the content contained on any such sites, or for the
failure of any product or service offered for sale on any such sites or for any
damages that may result there from. Copyrights in the materials or information
on the linked sites are owned by other organizations.
User Submitted Content
On certain sections of this Site, you may be permitted to post comments,
information, creative works (including but not limited to audio or audiovisual
works) or other materials (“User Content”). You acknowledge and agree that you
are solely responsible for any User Content that you post. You further
acknowledge and agree that NewBay has no responsibility for, or ownership of,
any User Content posted at this Site and will not be liable for any User Content
that is in violation of these Terms and Conditions. With respect to all User
Content that you post, you represent and warrant that: (i) the material is
either fully original to you or that you have all necessary rights, licenses and
permissions needed to post the material at this Site (including but not limited
to all copyright and right of publicity/privacy rights), and to grant, and
hereby do grant, NewBay and all other users of this Site a world-wide,
non-exclusive, royalty-free license that can be fully assigned and sub-licensed,
to use such User Content as contemplated by the Site; (ii) such User Content
will not infringe the rights of any person or entity, or violate any
governmental rule, regulation statute or law, or the terms and conditions of use
of this Site; (iii) no money will be owing to any party as a result of the
posting of the User Content or its use as contemplated by this Site; (iv) you
will be responsible for all User Content submitted through your account, and for
all purposes under these Terms and Conditions, all submissions from your account
shall be deemed to have been submitted by you.
NewBay has no control over, and does not endorse, any User Content and
expressly disclaims any and all liability in connection with any User Content.
However, in connection with User Content posted at this Site, in addition to all
other rights it has under this Agreement, at law or in equity, NewBay reserves
the right in its sole and absolute discretion, to: (i) remove without notice ,or
refuse to post in the first instance, any User Content; (ii) revoke any user’s
right to use this Site.
Any User Content sought to be posted at the Site must conform, in the sole
and exclusive opinion of NewBay, to the following rules and standards. It must:
(i) conform to all applicable laws, (ii) be appropriate in the context of the
general purposes of the Site; (ii) not be obscene, pornographic, patently
offensive, hateful, abusive or promote racism or discrimination of any kind;
(iii) not provide personal information, or solicit such information from any
other user of the Site; (iv) not involve or result in the transmission of junk
e-mail, unsolicited mass e-mailings, “spamming,” “spimming” or “phishing;” (v)
not transmit or distribute any potentially harmful programs such as Trojan
horses, worms, viruses, spyware or any malicious software or code; (vi) not
contain any material or images owned by any other person or entity unless you
have obtained all necessary rights, licenses and permissions needed to post the
material and have it used as contemplated by this Site; and (vii) be only for
non-commercial purposes.
Promotions, Sweepstakes and Contests
On occasion, NewBay or certain advertisers or suppliers to this Site may
elect to conduct certain promotions, sweepstakes or contests (collectively,
“Promotions”) on this Site. Each such Promotion may have specific rules and
regulations, which will be made available to users and which shall be deemed
incorporated in and become a part of these Terms and Conditions.
Copyright Infringement Policy
NewBay values intellectual property and respects the intellectual property
rights of others, and will remove materials on its Site that infringe the
copyrights of others. If you believe that your copyrighted material may have
been infringed by material contained on this website, then pursuant to Title 17,
United States Code, §512, you may notify NewBay’s Designated Agent in writing as
follows:
Copy Right Coordinator
NewBay Media LLC
810 Seventh Avenue
New York,
NY 10017
copyrightcoordinator@nbmedia.com
In your notice, you must include the following:
(i) a physical or
electronic signature of the owner of an exclusive right that is being infringed
or of a person authorized to act on behalf of such owner;
(ii) identification
of the copyrighted work(s) that is (are) allegedly being infringed;
(iii)
identification of the materials that are causing the infringement and that are
to be removed, along with sufficient information to allow us to locate such
materials;
(iv) contact information (i.e., name, address, email address)
sufficient to enable NewBay to contact you;
(v) a statement to the effect
that you have a good faith belief that the complained of use of the material was
not authorized by the owner of the copyright, its agent or the law;
(vi) 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 the exclusive right that is allegedly being infringed.
Additional/Different Terms
Certain pages or sections of this Site may contain terms and conditions of
use which are in addition to or different from these Terms and Conditions. For
example, certain Promotions or content that is designated as “premium” or
“special” content only be made available to users of the site that consent to
NewBay’s sharing of their Personal Consumer Information with the sponsors of
such Promotions and/or advertisers appearing on the such content pages. In the
event that there is a conflict between such additional and/or different terms
and conditions of use and these Terms and Conditions, the additional and/or
different terms and conditions will govern with respect to the specific pages or
sections to which they apply.
Limitation of Liability and Use Disclaimer
NewBay is not responsible for any damages or loss related to the use of this
site. THIS SITE, ALL MATERIAL CONTAINED ON THIS SITE, AND ALL LINKS OR OTHER
ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED “AS IS” AND WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THAT THE SITE, ITS FEATURES AND FUNCTIONS, WILL BE AVAILABLE FOR USE
OR WORK AS DESCRIBED. THERE ARE NO WARRANTIES REGARDING TITLE, SECURITY,
ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH
RESPECT TO THE SITE OR THE MATERIALS CONTAINED HEREON. ANY INFORMATION CONTAINED
WITHIN THIS WEBSITE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING WITHOUT NOTICE
AT ANY TIME. NEWBAY RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE
PAGES OF THIS SITE WITHOUT NOTICE AT ANY TIME AND ACCEPTS NO RESPONSIBILITY FOR
THESE PAGES NOT BEING AVAILABLE AT ALL TIMES. NEWBAY SHALL NOT BE LIABLE FOR ANY
ALLEGED DAMAGE OR INJURY, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY,
CONSEQUENTIAL, DIRECT, INDIRECT AND/OR SPECIAL DAMAGES, THAT RESULT FROM YOUR
USE OR INABILITY TO USE OR ACCESS THIS WEBSITE OR ANY MATERIALS CONTAINED HEREON
OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE.
Certain jurisdictions prohibit the limitation of liability for certain types
of damages, and accordingly, such limitations may not apply to you. In such
jurisdictions, NewBay’s liability is limited to the greatest extent allowable
under applicable law.
Transmitting and Downloading
NewBay is not responsible for any damages incurred as a result of any
interruption, transmission blackout, delayed transmission or incorrect data
transmission over the Internet.
NewBay does not warrant or represent that this Site will meet your
requirements, that access will not be interrupted or delayed, that there will be
no failures, errors or omissions or loss of transmitted information, that no
viruses will be transmitted or that no damage will occur to your computer
system.
Your Responsibilities
You are responsible for undertaking suitable precautions to scan for computer
viruses and maintaining a back up of all data and/or equipment.
By using this Site, you agree that you will be responsible for maintaining
the confidentiality of your password and account information, and that you will
restrict access to your computer to avoid disclosure of such. You further agree
that you will be responsible for all activity taken under your password and/or
account.
Indemnity
You agree to indemnify, defend and hold harmless NewBay Media LLC, its parent
corporation, officers, directors, employees and agents from and against any and
all claims, demands, losses, liabilities, damages, costs and expenses (including
but not limited to attorneys fees) arising from or in connection with: (i) your
use of the Site; (ii) your violation of these Terms and Conditions; and/or (iii)
any User Content submitted by you to the Site. You agree that your
representations and warranties, and obligation to indemnify NewBay shall survive
beyond any term that these Terms and Conditions are in effect.
Electronic Communications
When you communicate with NewBay electronically, via email or otherwise, you
consent to receive electronic communications from NewBay. You agree that all
communications (including, but not limited to all notices, agreements and
disclosures) provided to you electronically by NewBay satisfy any legal
requirement that such communication be in writing.
Changes in Policy
From time to time, the policies set forth in these Terms and Conditions may
change. We will post changes to the Terms and Conditions of Use at this site.
Please review these Terms and Conditions of Use often so that you will remain
abreast of our current policies. Your use of this site subsequent to any
amendment of these Terms and Conditions will signify your acceptance of, and
assent to, its revised terms. These Terms and Conditions of Use were last
updated on 2/7/2007 and are effective immediately.
Acquisition of Business
In the event that NewBay is involved in a merger, acquisition, consolidation,
restructuring, reorganization, liquidation, sale or similar transaction relating
to any portion of its business and/or assets, you hereby acknowledge and agree
that this site and all of NewBay’s rights hereunder may be included in the
assets of, and/or transferred pursuant to, such transaction. If that occurs,
NewBay will post a notice to such effect on this website.
Contact Us
If you have any questions concerning our website or any of the policies set
forth in these Terms and Conditions of Use, please contact us at:
NewBay Media LLC
810 Seventh Avenue; 27th Floor
New York, NY
10019
Attn.: Todd Baker
www.nbmedia.com
Applicable Law/Dispute Procedures
Use of this site and these Terms and Conditions shall be governed by the laws
of the State of New York, without regard to its conflict of law provisions. Any
dispute concerning your use of this site shall be submitted to binding
arbitration in New York within one (1) year from the date that the cause of
action arose (or, if multiple cause of actions are involved, from the date that
the first cause of action arose), with such arbitration conducted pursuant to
the then prevailing rules of the American Arbitration Association. To the
fullest extent permitted by law, no arbitration brought pursuant to these Terms
and Conditions shall be joined to any other arbitration initiated pursuant to
these Terms and Conditions.
Notwithstanding anything to the contrary set forth in these Terms and
Conditions, NewBay may at any time seek injunctive or other appropriate relief
against you and/or against others, in any state or federal court in the state of
New York, in the event that NewBay believes that you have violated or threatened
to violate any of NewBay’s intellectual property rights and you hereby consent
to the exclusive jurisdiction and venue of such courts.
If any portion of these Terms and Conditions are deemed unenforceable,
unlawful or void by a Court of competent jurisdiction, then that portion of the
Terms and Conditions will be deemed severable and will not affect the
enforceability or validity of the remaining portions of these Terms and
Conditions. No waiver by NewBay of any term or condition of these Terms and
Conditions shall be deemed a further or continuing waiver of such term or of any
other term, and NewBay’s failure to assert any right or demand compliance with
any provision of these Terms and Conditions shall not be deemed to constitute a
waiver of any such right or provision.
TM and Copyright 2007 NewBay Media LLC. All rights reserved.