PLEASE NOTE: THE TOU GOVERNS HOW DISPUTES BETWEEN YOU AND TELEPORT CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 5). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. Account. In order to use certain features of the Service, you may be asked to create an account ("Account"). You may never use another’s Account without permission. As part of the account set-up and registration process, you may be asked to select a username and password. You agree to provide true, accurate, current and complete information about yourself as prompted by the Site and will maintain the accuracy of such registration data. We may refuse to grant you a username for any reason in our sole discretion, including if we determine that such username impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. You agree to notify Teleport immediately of any unauthorized use of your password or any other breach of security. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
3. Intellectual Property Ownership. All text, content, documents, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing in the Site, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Site (collectively, the "Content") are owned by Teleport and its affiliates or used with permission or under license from a third party (hereinafter collectively referred to as the "Owner") and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Teleport and you, all right, title and interest in and to the Content will always remain with Teleport and/or its Owners. The word “Teleport” and the “Teleport” logos, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of Teleport. Teleport reserves all other rights. Except as expressly provided herein, nothing on the Site shall be construed as conferring any license under Teleport’s and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Teleport may revoke any of the foregoing rights and/or your access to the Site, or any part thereof, including the blocking of your IP Address, at any time without prior notice.
4. Restrictions on Use. You agree that any copy of the Content (or any portion of the Content) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Site or posting of Content on other websites is strictly prohibited. The use or misuse of the Site of any Content, except as provided in these TOU is strictly prohibited. You shall not, without Teleport’s express written consent:
(a) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the Content on any other server, or modify or re-use all or part of the Content on this system or any other system;
(b) use any tradename, trademark, or brand name of Teleport in metatags, keywords and/or hidden text;
(c) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the Content, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof;
(d) create derivative works from the Content or commercially exploit the Content, in whole or in part, in any way;
(e) use the Site, the Content, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Teleport, the Owner, or any third party referenced therein;
(f) use the Content, and/or any services and products on the Site or accessible via the Site for unlawful purposes;
(g) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Content;
(h) disassemble, decompile, reverse compile or reverse engineer any part of the Site;
(i) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site;
(j) use the Site or Content for any illegal, fraudulent, misleading or deceptive purposes;
(k) interfere with or damage the Site or Content, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(l) disrupt, overburden, or aid or assist in the disruption or overburdening of (x) any computer or server used to offer or support the Site or Services; or (y) the enjoyment of the Site or Services by any other person;
(m) upload content to the Site that (1) infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any person or entity; or (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive or profane; or
(n) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys, or other duplicative or unsolicited messages (commercial or otherwise).
5. Arbitration; Applicable Law.
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND TELEPORT CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND TELEPORT TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
Except for a claim by Teleport of infringement or misappropriation of Teleport’s patent, copyright, trademark, or trade secret, all disputes between you and Teleport arising under or related in any way to these TOU must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Site.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at [email protected] and you and Teleport will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Teleport agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services (collectively "Disputes") will be settled by binding arbitration, except that each party retains 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. This means that you and Teleport both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Teleport in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Teleport agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Teleport both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Teleport agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA 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 AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Teleport agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed $10,000.00, then the arbitration will be conducted solely on the basis of documents you and Teleport submit to the arbitrator, unless you request a hearing, and the arbitrator then determines that a hearing is necessary. If your claim exceeds $10,000.00, your right to a hearing will be determined by AAA Rules. Subject to AAA 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. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section below. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
The laws of the State of California, excluding its conflicts of law rules that would result in the laws of a State other than California, govern your use of the Site and the Service.
9. Community Guidelines. The Site may include certain functionality that allows users to post information, provide feedback and comments, or provide other content ("User Content"). Although Teleport may from time to time review User Content, you acknowledge that is under no obligation to monitor or control, and shall have no liability for, any User Content. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated or contained in User Content are those of their respective authors who are solely responsible and liable for their User Content. Teleport reserves the right, in its sole discretion, to refuse to post or remove any User Content at any time, without notice, for any reason or for no reason. In the event you upload, post or otherwise transmit any content, text, information, works of authorship or other materials on or to the Site ("Your Content"), you shall and hereby do grant Teleport a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, license, reproduce, modify, distribute, perform, display, and transmit Your Content for the purposes of providing the Site to you and other users.
10. Digital Millennium Copyright Act. Teleport is committed to respecting and protecting the legal rights of copyright owners. As such, Teleport adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a "DMCA Takedown Notice"). To be valid, a DMCA Takedown Notice must (i) be provided to Teleport’ designated agent, ("Copyright Agent"), as set forth below, and (ii) include the following:
(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 copyrighted 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;
(c) Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(e) A statement that you have 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, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Teleport’s Copyright Agent to receive DMCA Takedown Notices is:
Attention: Copyright Agent 440 North Barranca Avenue, No. 8219, Covina, CA 91723 Email: [email protected]
11. Disclaimers. Without limiting the foregoing, the Site and the Content and all other features offered via the Site, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Teleport hereby grants the minimum express or implied warranty required by such applicable law. No advice or information, whether oral or written, obtained by you from Teleport, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, Teleport does not make any warranties that the Site will be uninterrupted, secure or error free or that your use of the Site will meet your expectations, or that the Site, Content, or any portion thereof, is correct, accurate, or reliable. Teleport reserves the right to change any part of the Site at any time without notice.
13. Ability to Accept TOU. You affirm that you are more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the TOU, and to abide by and comply with the TOU.
14. Assignment. The TOU, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Teleport without restriction.
15. Changes to the TOU. From time to time, Teleport may revise the TOU. When changes are made, Teleport will make a new copy of the TOU available at the Site and will also update the “Last Updated” date above. If Teleport makes any material changes, and you have registered to create an Account with Teleport, Teleport will also send an email to you at the last email address you provided to us pursuant to the TOU. Any changes to the TOU will be effective immediately for new users of the Site and will be effective thirty (30) days after posting notice of such changes on the Site for existing users. Your use of the Site following the posting of any revised TOU shall be deemed acceptance of the revised policy. Teleport strongly recommends checking TOU periodically. If you disagree with the provisions of the TOU at any time, your sole remedy is to terminate your use of the Site. Continued use of the Site constitutes your agreement to the TOU as in effect.
16. Miscellaneous. Teleport’s failure to enforce any provision of the TOU shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of the TOU is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the TOU shall continue in effect. Any waiver or failure to enforce any provision of the TOU on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. A printed version of the TOU and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the TOU to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The TOU are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.