The terms and conditions set forth below (the “Terms”) govern your use of this site on the world wide web (the “Site”) of First Retail, Inc. (“First Retail”) and the services provided on or through the Site (the “Services”) and are legally binding on you. If you do not agree with any of these terms, do not access or otherwise use the Site and/or the Services or any information contained on the Site. Your use of the Site and/or the Services on the Site shall be deemed to be your agreement to abide by all of the terms set forth below. Furthermore, you agree that First Retail may make changes to the Services or the Site, at any time without notice, and can revise these Terms at any time. We will notify you of such revisions by posting an updated version of these Terms on the Site. You are responsible for regularly reviewing these Terms. Your continued use of the Site and/or the Services shall constitute your consent to such changes.
If you are using or opening an account with First Retail on behalf of a company, entity, or organization (collectively, the “Subscribing Entity”) then you represent and warrant that you: (I) are an authorized representative of that entity with the authority to bind such entity to these Terms; (II) have read the Terms; (III) understand the Terms, and (IV) agree to the Terms on behalf of such Subscribing Entity.
General Use Restrictions
All individual expressions of interest, information and documents provided on this Site or through the Services, including without limitation trademarks, logos, graphics and images (the “Personal Requests”) are provided to you by First Retail. Except as expressly stated herein, you acknowledge that you have no right, title or interest in or to the Personal Requests on any legal basis.
First Retail grants you the limited right to display the Personal Requests only on your personal computer, and to copy and download the Personal Requests displayed on this Site, provided that: (1) both the First Retail copyright notice (set forth below) and this permission notice appear in the Personal Requests so displayed, copied or downloaded, (2) such display, copy or download is solely for your personal and/or internal business purposes. You acknowledge and agree that you have no right to and will not modify, edit, alter, enhance, or distribute any of the Personal Requests in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms and First Retail may terminate your access to this Site and/or the Services with or without cause. Upon any termination of this limited license, you agree to immediately destroy any electronic or printed Personal Requests and cease using the Site and/or the Services.
You are prohibited from taking any action to circumvent or attempt to circumvent the security and access control provisions of the Site and the Services. Such prohibited conduct includes, without limitation, any efforts to (a) log in to an account with a password not assigned to you, (b) access personally identifiable information not intended for you, (c) test or interfere with the security measures on the Site and/or attempt to identify system vulnerabilities, (d) impersonate any other user of the Site and/or the Services or forge any of the header information in any posting or tamper with the TCP/IP packet header, (e) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Site or Services to any third party, (f) use the Site or Services to infringe the copyrights, trademarks, or other intellectual property rights or others in anyway, (g) modify, reverse engineer, disassemble, decompile or otherwise attempt or allow others to attempt to discover the underlying computer code for the Site and/or the Services except to the extent that such restriction is expressly prohibited by law, or (h) overwhelm or disable the Site or the Services or interfere with the access and use of the Site and/or the Services by any other user. If First Retail becomes aware of any of the foregoing activities, First Retail may investigate and may respond, and when appropriate, First Retail may work with law enforcement authorities in such investigations and for the purpose of prosecuting offenders. Your continued use of the Site and the Services is expressly conditioned on your compliance with the preceding prohibitions and with the obligations and restrictions. Without limiting the generality of foregoing, you acknowledge that First Retail expressly prohibits and you agree not to:
- Provide any false or misleading information about your identity or offers provided by you to First Retail in relation to your use of or access to the Site and/or Services;
- Post any false or inaccurate Submissions (defined below) or information;
- Use the Services and/or the Site to violate any applicable law or regulation, including, without limitation, the infringement of any copyright, trademark, trade secret or other intellectual property right of others, or violate the privacy or publicity rights of any other person.;
- Post any Submission or information that is abusive, defamatory, discriminatory, hateful, obscene, vulgar, sexually-orientated, threatening, or otherwise objectionable;
- Post any Submission that violates the content guidelines attached as Exhibit A hereto;
- Harass, stalk, or otherwise subject any other user of the Site and/or Services to unwanted and/or inappropriate contact;
- Post any offer or business opportunity which requires recruitment of other individuals, sub-distributors or sub-agents such as a multilevel marketing scheme, pyramid scheme, franchise or distributorship arrangement;
- Use the Site, Services and/or Personal Requests for any purpose other than to identify customer opportunities and to provide specific offers that you intend to and are authorized to fulfill;
- Send unsolicited mail or e-mail, making unsolicited phone calls or sending unsolicited faxes and/or advertise any products or services either by directly posting on the Site or within the Services or by making unsolicited contact with any user via email, telephone, postal mail, or any other method of communication;
- Make any changes, additions and/or deletions to any Submissions posted by any user without the express written authorization of such other user;
- Take any action that imposes an unreasonable or disproportionately large burden on the Sites infrastructure;
- Retrieve or collect Personal Requests or other data from the Site or Service other than through features provided by First Retail expressly for such purpose;
- Include any misleading, irrelevant and/or hidden keywords in any Submissions posted by you;
- Frame or link to the Site of any of the content or information available from the Site unless First Retail expressly consents in writing to such linking and/or framing;
- Intentionally expose the Site and/or Service to any computer virus or any other program or code intended to disrupt or disable to operations of the Site and/or Service;
- Use any robot, spider, scraper, or other program or device to retrieve or index any portion of the First Retail Site; or Harvest or otherwise collect information about other users for any purpose other than use of the Site and/or Services as expressly permitted herein.
The foregoing list of prohibitions is illustrative and is not intended to be complete or exclusive. First Retail reserves the right to terminate our relationship with you under these Terms and prohibit your access to the Site and/or Services or to add, edit, or remove any Submission for any reason, including, without limitation, any action that First Retail, in its sole judgment, determines to be inappropriate or disruptive to the Site, Services or to any user.
The foregoing prohibitions do not impose on First Retail, and First Retail does not assume, any obligation to monitor or remove any Submissions or other information or communication submitted by you or any other member. You hereby acknowledge and agree that you may be exposed to content that may be offensive or objectionable to you. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ALL SUBMISSIONS SUBMITTED BY YOU, ANY OTHER MEMBER OR ANY INDIVIDUAL CONSUMER EXPRESS THE VIEWS OF THE AUTHOR AND First Retail WILL NOT BE HELD RESPONSIBLE FOR OR LIABLE FOR THE CONTENT IN SUCH SUBMISSIONS. Your access to the Site and Services is undertaken at your own risk and First Retail is not responsible for any offensive or otherwise objectionable Personal Requests that may be posted by any third party.
Account Registration and Password Protection
Prior to gaining access to Services on the Site, First Retail will require you to set up a user name and password (the “Password(s)”). You agree to comply with the procedures specified by First Retail from time to time regarding obtaining and updating Passwords for the Site and Services. You agree to assume sole responsibility for the security of Passwords issued to you. Passwords are subject to cancellation or suspension by First Retail at any time, including upon the misuse of any and the reissuance or reactivation of Passwords. You agree to ensure that you will use your best efforts to prevent any third party from obtaining your Password, and you shall inform First Retail immediately in writing of any actual or potential unauthorized access to a Password or to the Site and/or Services.
Third Party Content
Links To Third Party Sites
Trademarks and Copyrights
The trademarks, service marks, brands, names, logos and designs (“Trademarks”) of First Retail or others used on this Site and in the Services are the property of First Retail or their respective owners. You may not remove or alter any Trademark. You may not use any trademark displayed on the Site or in the Services without the express prior written permission of First Retail or the respective owner, and nothing contained on this Site grants by implication, waiver, estoppel or otherwise, any right to use such trademarks. All of the Personal Requests appearing on this Site and in the Services, including but not limited to, text elements, site design, images and icons, as well as the selection, assembly and arrangement thereof, and the Site are the sole property of First Retail, Copyright © 2010, unless otherwise specified. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
You agree to defend, indemnify and hold harmless First Retail and its affiliates, consultants, representatives, partners, agents and employees from and against any and all liabilities, claims, costs and expenses, including attorneys’ fees, that arise out of or in connection with your use of the Site and/or the Services or breach of these Terms.
Disclaimer of Warranty
You acknowledge and agree that this Site and/or the Services may include certain errors, omissions, outdated information which may affect the quality of the Personal Requests. You acknowledge that the requests have not been independently verified or authenticated in whole or in part by First Retail, and agree that First Retail does not warrant the accuracy or timeliness of the requests and further agree that First Retail has no liability for any errors or omissions in the Personal Requests, whether provided by First Retail or its licensors.
First Retail, FOR ITSELF AND EACH OF ITS LICENSORS, MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED ON THE SITE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE PERSONAL REQUESTS AND ANY THIRD PARTY CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND/OR THE SERVICES AND ANY INFORMATION OR MATERIAL CONTAINED ON THE SITE IS PROVIDED TO YOU ON AN “AS IS” AND “WHERE-IS” BASIS, AND IS FOR YOUR INTERNAL BUSINESS USE ONLY. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED. First Retail PROVIDES THE SERVICES “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND.
Limitation of Liability
NEITHER First Retail NOR ANY OF ITS PARTNERS, AGENTS, EMPLOYEES, CONTRACTORS, AFFILIATES, THIRD PARTY PROVIDERS OR CONTENT PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, RELIANCE, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OR ATTEMPTED USE OF THE SITE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE RESULTS OF YOUR USE OF THE SITE AND/OR THE SERVICES, OR ANY EXTERNAL WEB SITES LINKED TO THIS SITE, OR THE PERSONAL REQUESTS ON THE SITE, HOWEVER ARISING, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), EVEN IF First Retail WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT WILL First Retail’S OR ITS PARTNERS’, AGENTS’, EMPLOYEES’, CONTRACTORS’, AFFILIATES’, THIRD PARTY PROVIDERS’ OR CONTENT PROVIDERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER MEMBERS OF THE SITE OR MEMBERS OF AFFILIATED SITES OR SERVICES, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USE OF THE SITE OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
Basis of the Bargain
You agree that the warranty disclaimers, exclusive remedies, and limitations on damages set forth above are fundamental elements of the basis of the agreement between You and First Retail. You further agree that First Retail would not be able to provide the Site or Services to You on an economically reasonable basis without these limitations. You acknowledge and agree that the warranty disclaimers, exclusive remedies, and limitations on damages reflect a reasonable and fair allocation of risk between You and First Retail. The above warranty disclaimer, exclusive remedies, and limitations on damages inure to the benefit of First Retail licensors and third party providers.
First Retail respects the intellectual property of others, and we ask that you do the same. If you believe that your work has been copied on this Site in a way that constitutes copyright infringement and appears on this Site, please provide OUR copyright agent with the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Site;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for notice of claims of copyright infringement on this Site can be reached as follows:
First Retail, Inc. Attention: Copyright Agent By email: firstname.lastname@example.org
First Retail controls and operates this Site from its headquarters in the United States and makes no representation that the Services or the Personal Requests are appropriate or will be available for use in locations other than the United States. If you use this Site or the Services from outside the United States, you are entirely responsible for compliance with applicable local laws, including but not limited to the export and import regulations of other countries in relation to the Personal Requests. These Terms will be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You shall bring all disputes, actions, claims, or causes of action related to these Terms or in connection with this Site only in the federal and state courts located in Santa Clara County, California. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect. The failure of First Retail to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by First Retail in writing. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be transferred or assigned, in whole or in part, by First Retail without restriction. No joint venture, partnership, employment or agency relationship exists between you and First Retail. These Terms comprise the entire agreement between you and First Retail and supersede all prior or contemporaneous negotiations, discussions or agreements, if any, between the parties regarding the subject matter contained herein. (rev:1/12/2010)
First Retail may remove or refuse to distribute any advertisements or games that violate its Content Guidelines. First Retail reserves the right to, but has no obligation to, enforce the Content Guidelines contained herein, and the failure by First Retail to enforce any of the Content Guidelines shall not constitute a waiver of its right to enforce the same at any time in the future in its sole discretion. First Retail’s reasonable determination of whether a Submission violates these Content Guidelines will be final and binding. You may not transmit Submissions including or embodying any of the following types of content:
Drugs (e.g., marijuana, herbal drugs such as salvia and magic mushrooms, etc.) or drug paraphernalia or accessories
Politics (e.g., lobbyists, PAC sites, political campaigns, alternative lifestyles advocacies)
Sexually explicit or obscene images or material such as exposed breasts, bare buttocks, visible genitals, obscured or implied sexual acts, visible sexual touching, explicit sexual language, erections/explicit sexual acts, erotica, etc.
Sensationalism (e.g., killer bees, gossip, aliens, scandal, etc.)
Potentially slanderous or libelous content
Bad language, body parts, proxies for bad language (X@#%!), or noises related to bodily functions
Gambling, wagering, or betting (excluding state lotteries, sweepstakes, fantasy leagues, and gambling, wagering, or betting that is simulated within a game and does not involve actual money)
Graphic violence (unless approved by First Retail in writing on a case by case basis) such as assault/rape, injury to human beings, injury to animals, blood and dismemberment of human beings or animals, torture or killing of human beings or animals, etc.
Weapons such as firearms, ammunition, balisongs, butterfly knives, brass knuckles, etc.
Tobacco or tobacco-related products
Discrimination or hateful speech based on race, color, gender, religion, nationality, disability, sexual orientation, age, or veteran status
Illegal activities or any materials that infringe or assist other to infringe on any copyright, trademark or other intellectual property rights
Images or content that are any way unlawful, harmful, threatening defamatory, obscene, or harassing
Unreasonable or highly unlikely product or service claims
Double entendres (i.e., the second meaning of a word or phrase is risqué)