Pure Digital Technologies, Inc. User Agreement
Effective as of December 1, 2007
The following describes the terms on which Pure Digital Technologies, Inc. (“Pure Digital”, “we” or “us”) provides the Pure Digital web sites including www.puredigitalinc.com, www.theflip.com, and www.flipvideospotlight.com (collectively referred to as the “Sites” in this document).
INTRODUCTION
By using the Sites, you are accepting this Pure Digital Technologies, Inc. User Agreement (the “Agreement”). The Agreement consists of the terms contained in this document, including those made available by hyperlink, as well as all guidelines and rules posted from time to time within the Sites including, without limitation, the following hyperlinked terms:
Your acceptance of the Agreement forms a legally binding contract between you and Pure Digital. You may not accept the Agreement if you are not of legal age to form a binding contract with Pure Digital.
Pure Digital reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement, at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Sites following the posting of changes will mean that you accept and agree to the changes. As long as you comply with this Agreement, Pure Digital grants you a limited, revocable, non-exclusive, non-assignable, non-sublicenseable right to access and use the Sites as they are intended to be used and only in accordance with the Agreement and applicable law. We grant you no other rights, implied or otherwise.
INTELLECTUAL PROPERTY
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Pure Digital, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly provided in this Agreement, no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Pure Digital’s express prior written consent.
ACCOUNTS, PASSWORDS AND SECURITY
Certain features or services offered on or through the Sites may permit or require you to open an account (including setting up a user name and password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Pure Digital immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by Pure Digital or any other user or any other visitor to the Sites due to someone else using your user name, password or account.
VIOLATION OF THIS AGREEMENT
You agree that Pure Digital may, in its sole discretion and without prior notice, terminate your access to the Sites and/or block your future access to the Sites if we determine that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Sites. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to Pure Digital, for which monetary damages would be inadequate, and you consent to Pure Digital obtaining any injunctive or equitable relief that Pure Digital deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Pure Digital may have at law or in equity.
If Pure Digital does take any legal action against you as a result of your violation of this Agreement, Pure Digital will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Pure Digital. You agree that Pure Digital will not be liable to you or to any third party for termination of your access to the Sites as a result of any violation of this Agreement.
GOVERNING LAW; DISPUTE RESOLUTION
You agree that all matters relating to your access to or use of the Sites, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in San Francisco County, California, and waive any objection to such jurisdiction or venue. Any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Pure Digital and you arising out of or in connection with your use of the Sites, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK. THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PURE DIGITAL AND ITS SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS AND LICENSORS (THE “PURE DIGITAL AFFILIATES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PURE DIGITAL AFFILIATES MAKE NO WARRANTY THAT (1) THE SITES WILL MEET YOUR REQUIREMENTS; (2) THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) ANY PRODUCTS, SITES, INFORMATION OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (4) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SITES OR RELATED SOFTWARE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE, REPRESENTATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PURE DIGITAL OR THROUGH THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE PURE DIGITAL AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (1) ANY CHANGES THAT PURE DIGITAL MAY MAKE TO THE SITES; (2) ANY PERMANENT OR TEMPORARY CESSATION OF THE SITES; (3) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY CONTENT OR OTHER PROPERTY MAINTAINED THROUGH THE SITES; OR (4) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, THE PURE DIGITAL AFFILIATES’ LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
INDEMNIFICATION
You will indemnify and hold the Pure Digital Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) incurred by the Pure Digital Affiliates in connection with any claim arising out of your breach of the Agreement. Pure Digital reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
LINKS TO OTHER SITES
The Sites may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Pure Digital’s control, and Pure Digital is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
GENERAL LEGAL TERMS
This Agreement is the whole legal agreement between you and Pure Digital. It governs your use of the Sites and completely replaces any prior agreements between you and Pure Digital with respect to the Sites. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Pure Digital does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights. Pure Digital may assign or delegate all rights and obligations under the Agreement, fully or partially.
Pure Digital may provide you with notices, including those regarding changes to the Agreement, by email, regular mail or postings on the Sites. Pure Digital’s mailing address is 30 Maiden Lane, 6th Floor, San Francisco, California 94108. Legal notices must be served on Pure Digital Technologies, Inc.’s national registered agent in Delaware.
Each Pure Digital Affiliate is a third party beneficiary to the Agreement and shall be entitled to directly enforce and rely upon any provision of the Agreement that confers a benefit on them. Other than this, no other person shall be a third party beneficiary to the Agreement.