CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS MUST BE ACCEPTED ONLY BY INDICATING A MANIFESTATION OF ASSENT BY CLICKING THE "ACCEPT" BUTTON BELOW ("MANIFESTATION OF ASSENT").
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Omni Theme and Member agree as follows:
1. Definitions and Interpretations.
1.1. Certain terms used herein shall have the meaning ascribed to such terms as set forth in the Plurlife Definitions.
1.2. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
1.3. All the defined terms as set forth in the Plurlife Definitions, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
2. Grant of Membership.
2.1. Subject to the terms and conditions of this Agreement, Omni Theme hereby grants Member a personal, limited, revocable, non-transferable, non-assignable (except as set forth in Section 11), non-exclusive license to: (a) use (for the purposes expressly permitted in the Website Content), access, and/or interface with the Website Content for personal, Non-commercial Purposes; provided, however, that use, access, and/or interfacing with the Website Content may, in Omni Theme's sole and absolute discretion, be denied at: (i) certain times reasonably designated by Omni Theme for updates, back-ups and/or maintenance of the Domain Name and/or the Website Software and/or (ii) other times unexpected and/or outside the reasonable Control of Omni Theme, including, without limitation, network outages, technical errors, and third Person acts or omissions that prohibit, hinder or otherwise preclude use, access, and/or interface with the Website Software; (b) view the Website Content for personal, Non-commercial Purposes; provided, however, that nothing in this Agreement shall grant a license to Member to Publish the Website Content, except as set forth in Section 2.1(c); (c) reproduce and Publish the Website Content (excluding any Software) solely for Member's personal use in connection with the Website Content; and (d) create a hyperlink to the Website Content (collectively, the "Membership License").
2.2. Status as a Member is a privilege that only confers on the Member the limited license as set forth in the scope of the Membership License. Member covenants that the licenses arising out of the Membership License do not provide any license, right or privilege to the Membership License not expressly set forth within the scope of the Membership License.
2.3. The grant of the Membership License is void where prohibited and shall be automatically void if any Member is under 13 years of age. In accordance with Section 9, the Membership License may be terminated without warning if Omni Theme believes that Member is under 13 years of age, under 18 years of age and Member represents that Member is 18 years of age or older, or over 18 years of age and Member represents that Member is under 18 years of age.
2.4. Member represents and warrants that: (a) all registration information Member submits is truthful and accurate; (b) Member shall maintain the accuracy of such information; (c) Member is 13 years of age or older; and (d) Member's use of the Membership License does not violate any applicable law, rule, and/or regulation. Member shall register for only one personal Membership License. Member shall not register for a Membership License for any Person other than Member without permission from that Person.
2.5. Member shall have the ability to post, transmit, submit, or Publish Content on, through or in connection with the Member's profile in association with the Website Content ("Member Profile Content"). It is the Member's responsibility to ensure that Member Profile Content or Member conduct is in conformance with all applicable laws. Member shall submit a password, which should be a unique password, in order to utilize the Membership License. Member shall maintain the confidentiality of Member's submitted password. Omni Theme shall use reasonable efforts to maintain the confidentiality of Member's password but Omni Theme provides no covenant or assurance that Omni Theme's reasonable efforts will be entirely successful or not thwarted in some capacity. Member covenants, represents and warrants that Member shall notify Omni Theme immediately if Member suspects any unauthorized use of Member's profile or Member's submitted password. Member covenants, represents, and warrants that Member is solely responsible for any and all use of Member's profile. Member shall not solicit any password or any other information from any other Person for purposes of accessing that Person's profile. Member is advised to choose carefully what Content Member chooses to become Member Profile Content. Member Profile Content that contains any form of Prohibited Content is prohibited (the "Content Prohibition"). Despite the Content Prohibition, Omni Theme assumes no responsibility or liability for any Content posted by Plurlife Members or in association with third Person links (as set forth in Section 4) that constitute Prohibited Content. Omni Theme assumes no responsibility for monitoring Content posted by Plurlife Members or in association with third Person links. Member covenants, represents and warrants that Member shall promptly report any Prohibited Content to Omni Theme.
2.6. OMNI THEME RESERVES THE RIGHT, IN OMNI THEME'S SOLE AND ABSOLUTE DISCRETION, TO REJECT, REFUSE TO POST, OR REMOVE ANY MEMBER PROFILE CONTENT, INCLUDING, WITHOUT LIMITATION, COMMERCIAL CONTENT, OR TO DENY, RESTRICT, SUSPEND, OR TERMINATE THE MEMBERSHIP LICENSE AT ANY TIME, FOR ANY OR NO REASON, WITH OR WITHOUT NOTICE OR EXPLANATION, AND WITHOUT LIABILITY. IF OMNI THEME DENIES, RESTRICTS, SUSPENDS, OR TERMINATES THE MEMBERSHIP LICENSE, MEMBER SHALL NOT ATTEMPT TO OBTAIN ANOTHER MEMBERSHIP LICENSE WITHOUT OMNI THEME'S WRITTEN CONSENT. IN ADDITION, OMNI THEME RESERVES THE RIGHT, AT OMNI THEME'S SOLE DISCRETION, TO REASSIGN OR RENAME MEMBER'S PROFILE URL.
2.7. Member shall also have the ability to interact with Plurlife Members on, through or in connection with the Member's profile in association with the Website Content, including, without limitation, viewing Content of Plurlife Members and Omni Theme licensors. Except as provided in this Agreement, Member may not copy, modify, Publish, sell, or otherwise use any Content appearing on or through the Website Content. Member is solely responsible for Member's interactions with Plurlife Members, third party developers (if any are permitted by Omni Theme), and other Persons with whom Member interacts with through the Website Content and/or third Person links. Omni Theme reserves the right, but has no obligation, to become involved in any dispute arising from such interactions.
2.8. Omni Theme reserves the right, in Omni Theme's sole and absolute discretion, to charge for any portion of the Membership License and to change fees (if any) from time to time. If Omni Theme terminates the Membership License because Member has breached this Agreement, then Member shall not be entitled to the refund of any unused portion of fees or payments (if any).
2.9. Illegal and/or unauthorized use of the Membership License, including, without limitation, collecting Plurlife Members' names, identification numbers, and/or email addresses by any means for the purpose of sending unsolicited email or unauthorized framing of, or linking to, the Website Content, or employing third party promotional sites or Software to solicit Plurlife Members for money, is prohibited. Omni Theme reserves the right to take appropriate legal action, including, without limitation, providing referrals to law enforcement, for any illegal or unauthorized use of the Website Content, including, without limitation, violations of applicable child bullying laws.
2.10. Member shall not transfer Member's profile to any other Person without Omni Theme's written consent. Member shall not transfer any of Member's rights or obligations under this Agreement to any Person without Omni Theme's written consent.
2.11. Member covenants, represents and warrants that Member is not a sex offender pursuant to any applicable law. Member covenants, represents and warrants that Member has not engaged in any cyberstalking and/or any other harassment-related internet crimes.
3. Member Covenants/Warranties.
3.1. Member shall not view, print, copy or Publish the Website Content for any purpose outside the limited scope of the Non-commercial Purposes without express written consent of Omni Theme, such consent granted in Omni Theme's sole and absolute discretion.
3.2. Member shall not attempt to modify, change, disable, overburden, and/or impair any Website Content.
3.3. Member shall not charge any Person any amount or receive any value from any Person to view, print, copy or Publish the Website Content.
3.4. Member shall not utilize framing technology to enclose any Website Content without express written consent of Omni Theme, such consent granted in Omni Theme's sole and absolute discretion.
3.5. Member shall not use any meta tags or other Content utilizing Omni Theme's Intellectual Property, without the express written consent of Omni Theme, such consent granted in Omni Theme's sole and absolute discretion.
3.6. Member shall not use any embodiment of the Website Content in any Media whatsoever, unless such embodiment bears and displays the copyright, service mark and trademark notices as designated (from time to time) by Omni Theme.
3.7. Member shall never Encumber, nor authorize nor enable any Person to Encumber, Omni Theme's Intellectual Property or any portion thereof.
3.8. Member's creation of or use of any hyperlink to the Website Content shall not portray Omni Theme, Omni Theme's affiliates, Omni Theme's products or services in a false, derogatory, misleading, or otherwise offensive manner.
3.9. Member covenants, represents and warrants that: (a) Member owns the Member Profile Content, or otherwise has the right to grant the limited license as set forth in Section 6.4; and (b) the posting of the Member Profile Content does not violate the privacy rights, publicity rights, copyrights, Contract rights, or any other rights of any Person. Member covenants, represents and warrants that Member shall pay for all royalties, fees, and any other monies owing any Person or entity by reason of the use of the Member Profile Content regardless of any other agreements between Omni Theme and Member.
3.10. If Member previously accessed Website Content prior to the Manifestation of Asset, Member covenants, represents and warrants that Member has complied with this Agreement since July 27, 2012. Member's continued use of the Website Content following any changes to this Agreement constitutes Member's acceptance of any amended terms or provisions.
3.11. Member covenants, represents and warrants that Member shall not facilitate or encourage any violation of this Agreement by any third Person.
3.12. Member covenants, represents and warrants that Member consents to enabling Persons to sync mobile devices with the Website Content.
4. Third Person Links
Member covenants that the Website Content may contain hyperlinks to other websites Controlled by third Persons. Member covenants that Omni Theme does not Control any third Person link. Member covenants that Omni Theme is not responsible, nor provides any warranties (express or implied), for the Content of any linked site or any link contained in a linked site. Member covenants that Omni Theme provides links to Member only as a convenience, and the inclusion of any link does not imply endorsement by Omni Theme of the site. Member covenants that the third Person links may use Member profile information and Member Profile Content on the third Person links to share information to Plurlife Members in association with the Website Content. Member covenants that Omni Theme encourages Plurlife Members to review the agreements or policies associated with the third Person links as those agreements and policies govern the interaction between Plurlife Members and the third Person links.
5.1. Member shall direct any copyright infringement claims to Omni Theme's designated agent, consistent with section 512 of the Digital Millennium Copyright Act (17 U.S.C. section 512). The designated agent to receive notification of claimed infringement, as filed with the Public Information Office of the Copyright Office, is available in the following manner:
Steven A. Gibson
Dickinson Wright PLLC
7201 West Lake Mead Boulevard, Suite 503
Las Vegas, Nevada 89128
Telephone: (702) 541-7888
Facsimile: (702) 541-7899
5.2. All copyright infringement claims must be in writing and shall include the following information:
5.2.1. A physical or electronic signature of a Person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
5.2.2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website are covered by a single notification, a representative list of such works at that website.
5.2.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Omni Theme to locate the material.
5.2.4. Information reasonably sufficient to permit Omni Theme to contact the complaining Person, including address, telephone number, and e-mail address.
5.2.5. A statement that the complaining Person 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.
5.2.6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining Person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
6. Retained Rights.
6.1. Member covenants, represents and warrants that Omni Theme owns the Domain Name.
6.2. Omni Theme may, in Omni Theme's sole discretion, modify any and all of the Website Content without notice at any time.
6.3. Omni Theme does not claim any ownership rights in any individual Member Profile Content (but may claim rights in the aggregate presentation), unless claimed under a separate agreement. Member continues to retain any rights to the Member Profile Content held by Member prior to the Content becoming Member Profile Content, subject to the limited license provided in Section 6.4.
6.4. Member grants Omni Theme a limited license to use, modify, post, transmit, submit, display, reproduce or Publish Member Profile Content solely on, through or in connection with the Website Content, including, without limitation, in relation to third Person links as set forth in Section 4 (the "Omni Theme License"). Member covenants, represents and warrants that once Member Profile Content is distributed to a third Person link, or incorporated into other aspects of the Website Content, Omni Theme is under no obligation to delete or ask Plurlife Members, or third Person links, to delete that Member Profile Content, and therefore, the Member Profile Content may continue to appear and be Exploited by Omni Theme indefinitely and unconditionally. The Omni Theme License is nonexclusive, fully-paid, royalty-free, sublicensable and worldwide, unless otherwise agreed to in a separate agreement.
6.5. All licenses not expressly granted to Member pursuant to this Agreement are reserved by Omni Theme. Member shall not acquire any right, title or interest in and to the Website Content other than to Member Profile Content actually originally authored by the Member. Member shall not contest the right, title or interest of Omni Theme in and to the Website Content or the validity of the license granted by Omni Theme to Member pursuant to this Agreement. Member shall not at any time apply for any registration of any Intellectual Property which would affect the right, title or interest of Omni Theme in and to the Website Content nor shall Member file any document with any Governmental Authority or take any action which would impact any such right, title or interest in and to the Website Content or assist any other Person with such action or document.
6.6. All right, title and interest in and to the Website Content, including, without limitation, the Intellectual Property in the Website Content, exclusively vests in and shall always vest with Omni Theme or Omni Theme's respective designees.
6.7. Member shall promptly notify Omni Theme of any unauthorized Exploitation of Omni Theme's Intellectual Property by third Persons that come to Member's attention. Omni Theme shall have the right, exercisable at Omni Theme's sole discretion, to institute and Control all Claims against third Persons relating to Omni Theme's Intellectual Property.
6.8. To the extent Member is deemed an owner of any Intellectual Property in the Website Content or any other Intellectual Property which Omni Theme has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), Member hereby assigns any and all such Intellectual Property to Omni Theme and shall execute and undertake all documents and all actions necessary to effect the clarification of ownership of all such Intellectual Property in and to Omni Theme and to permit Omni Theme to apply for registration of such Intellectual Property and/or issuances of patents, as well as maintain any registrations or issuances granted.
6.9. Omni Theme retains the right to preclude Member's use of any portion of the Website Content that is determined to infringe a third Person's Intellectual Property or that is the subject of a prohibition of use by any Governmental Authority (a "Prohibition Event"). If a Prohibition Event occurs and such preclusion follows, then Omni Theme shall use reasonable efforts to provide a substitute to the affected Website Content for Member's use consistent with the provisions of this Agreement.
6.10. Omni Theme, in Omni Theme's sole discretion, reserves the right to investigate and take appropriate legal action against anyone who violates this Agreement, including, without limitation, removing Prohibited Content, terminating the Membership License, and/or reporting Plurlife Members to law enforcement authorities.
6.11. Member covenants that Omni Theme performs technical functions necessary to provide the Website Content, including, without limitation, the technical processing and transmission of email communications to perform the email service and transcoding and/or reformatting of the Website Content. Member covenants that Omni Theme may send messages, including, without limitation, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the Website Content. Member can control what type of communications Member receives from Omni Theme by selecting the appropriate notification settings, terminating the Membership License, or by contacting Omni Theme.
6.12. Omni Theme reserves the right to limit the storage capacity of Member Profile Content.
6.13. The use of the Website Content is also governed by the Privacy Parameters, which is incorporated in this Agreement by reference.
7. Disclaimer of all Warranties and Representations.
THE WEBSITE CONTENT IS PROVIDED "AS IS." OMNI THEME DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE WEBSITE CONTENT OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT OMNI THEME KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING. OMNI THEME IS NOT RESPONSIBLE FOR ANY DAMAGE, INJURY, OR LOSS CAUSED BY MEMBERS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE WEBSITE CONTENT OR THIRD PERSON LINKS. MEMBER RELEASES OMNI THEME AND OMNI THEME'S REPRESENTATIVES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM MEMBER HAS AGAINST ANY THIRD PARTY. IF MEMBER IS A CALIFORNIA RESIDENT, MEMBER WAIVES CALIFORNIA CIVIL CODE $1542, WHICH SAYS: "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."
OMNI THEME SHALL NOT BE HELD LIABLE TO ANY PERSON ON ACCOUNT OF OR DUE TO A BREACH OF THIS AGREEMENT IN OR FOR ANY AMOUNT AND OMNI THEME SHALL NOT BE LIABLE TO MEMBER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO THE MEMBER'S RIGHT, TITLE AND INTEREST) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PERSON HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
9.1. In addition to any and all other remedies available to Omni Theme pursuant to this Agreement, Omni Theme shall have the right to immediately terminate the Membership License for any or no reason, with or without notice or explanation, and without liability.
9.2. Member may terminate this Agreement at any time, for any reason, by following the instruction on the Member's account settings page.
9.3. On termination of this Agreement, Member shall immediately cease any further use of the Website Content.
Notwithstanding any other provision of this Agreement, Member shall indemnify and hold Omni Theme and Omni Theme's Representatives (the "Indemnified Parties") harmless from and against any Losses incurred by any of the Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of Member, including, without limitation, the misuse of the Website Content, any breach of this Agreement, and/or in relation to the Member Profile Content.
This Agreement is personal to Member, and Member shall not assign or have assumed this Agreement to and by, respectively, third Persons. Member covenants that Omni Theme's rights and obligations pursuant to and arising out of this Agreement are freely assignable by Omni Theme in connection with a merger, acquisition, sale of assets, or by operation of law or otherwise.
12. General Provisions.
12.1. Member covenants that Member's failure to cease further use of the Website Content upon termination of this Agreement or any violation by Member of Member's covenants in this Agreement relating to Omni Theme's Intellectual Property would result in damage that is largely intangible, but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give Omni Theme the right to a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants.
12.2. The provisions herein concerning Intellectual Property shall be construed as independent of any other provision hereof and raising a defense to an obligation of the Member in this Agreement related to Intellectual Property shall not impair the on going duty of Member to perform in accordance with Member's own obligations pursuant to this Agreement.
12.3. Member shall not use Omni Theme's name, service marks, trade dress or trademarks, except as designated in Sections 2.7 and 3.1. Member covenants that in utilizing the Website Content, Member shall in no way represent that Member has any right, title or interest in or to the Website Content.
12.4. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
12.5. Sections 3, 4, 7, 8, 10 and 12 shall survive any termination of this Agreement.
12.6. The failure of Omni Theme to exercise or enforce any right or provision of this Agreement shall not be construed or operate as a waiver of such right or provision. Any waiver of this Agreement must be in a signed writing by Omni Theme.
12.7. This Agreement represents the entire understanding between Omni Theme and Member with respect to the Website Content. Omni Theme reserves the right to modify this Agreement at any time. This Agreement shall be binding upon and inure to the benefit of the Parties and may be executed in one (1) or more counterparts. The Parties covenant that each of them has reviewed this Agreement and has had the opportunity to have this Agreement reviewed by their attorneys and that any rule or construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement, including amendments or exhibits. This Agreement supersedes any prior agreements.
12.8. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to Nevada's conflict of law provisions. Member consents to personal jurisdiction, as well as venue for any Claim regarding or arising out of this Agreement in the appropriate state or federal court located in Clark County, Nevada. Any and all disputes, Claims, or causes of action arising out of this Agreement shall be litigated in the appropriate state or federal court located in Clark County, Nevada.
12.9. Member and Omni Theme hereby knowingly, voluntarily, and intentionally waive any right either Party may have to a trial by jury in respect to any Claim arising out of, under, or in connection with this Agreement. In addition, Member and Omni Theme hereto certify that no Representative of either Party has represented (expressly or otherwise) that such Party would not in the event of such litigation, seek to enforce this waiver of right to jury trial provision. Each Party covenants that this Section is a material inducement for the other Party entering into this Agreement.
12.10. Member covenants that Member's engagement of the Website Content is an act within the United States and Omni Theme is only authorizing publication in accordance with United States law. To the extent Member attempts to Publish any Member Profile Content through any other jurisdiction other than within the United States, Member covenants that Omni Theme has not authorized such publication.
12.11. Member covenants that this Agreement does not confer any third Person with any third party beneficiary rights.
12.12. Member shall not create any application or downloadable Software in relation to the Website Content. Omni Theme reserves the right to allow Member to create an application or downloadable Software in relation to the Website Content in Omni Theme's sole and absolute discretion. Any Member who desires to create an application or downloadable Software in relation to the Website Content may contact Omni Theme to obtain Omni Theme's written consent to create such application or downloadable Software.
12.13. Omni Theme reserves the right to allow Member to download Software in relation to the Website Content in Omni Theme's sole and absolute discretion.