TERMS OF SERVICE
This is the Terms of Service Agreement (the “Terms of Service” or “Agreement”) for all Web sites and mobile Web sites owned or operated by B-OUT, LLC (“B-OUT” or “we” or “us”) including the Web site currently located at www.bout.lgbt (the "Site"), any B-OUT mobile application (the “B-Out App”) that are offered by B-OUT, and any and all associated services provided by B-OUT in connection with any of the foregoing (all of which, together with the Site, are collectively referred to as the “B-OUT Universe” or the “Service”).
Please read these Terms of Service carefully before using the Service offered by B-OUT or entering the B-OUT Universe.
BY USING THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO ACCESSING, VISITING, BROWSING, SCRAPING OR CRAWLING THE B-OUT UNIVERSE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
We reserve the right, in our sole discretion, to change these Terms of Service at any time, and will publish a revised version of these Terms of Service on the B-OUT Universe with the new “Last Updated” date as indicated at the end of this Agreement. You are responsible for regularly reviewing these Terms of Service. Continued access to and use of the B-OUT Universe following any such change means you accept and will abide by the changes. In the event of a material change that may directly affect your account, we will notify you via the most recent e-mail address that you have provided to us in conjunction with your account.
1. Acceptance of Terms
The Service is available only to individuals who are at least 13 years old. You represent and warrant (i) that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal or guardian consent and are competent to enter into an agreement to accept these Terms of Service and to use the Service; (ii) that all registration information you submit is accurate and truthful; and (iii) that your use of the Service does not violate any applicable law or regulation. B-OUT may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
As a condition to using certain aspects of the Service, you may be required to register with B-OUT by providing your email address and a password. You shall provide B-OUT with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your B-OUT account. You shall not (i) select or use as an B-OUT Username a name of another person with the intent to impersonate that person; (ii) use as an B-OUT Username a name subject to any rights of a person or entity other than you without appropriate authorization; or (iii) use as an B-OUT Username a name that is otherwise offensive, vulgar or obscene. B-OUT reserves the right to refuse registration of, or cancel a B-OUT Username in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your B-OUT password. You shall never use another user’s account without such other user’s express permission. You will immediately notify B-OUT in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
Although B-OUT will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of B-OUT or others due to unauthorized use.
4. Ownership of B-OUT Universe and B-OUT Universe Content
You agree that the Service contains B-OUT Universe Content specifically provided by B-OUT, its business partners and other users and that such B-OUT Universe Content is protected, (individually or as a collective work or compilation) by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. The elements of the B-OUT Universe Content (collectively, “B-OUT Universe Content”) include without limitation, the user interface, interactive features, content, software, code, data, art, graphics, animation, photographs, images, text, music, sound effects, all audio and audiovisual elements, look-and-feel, design, layout, organization, presentation, navigation, compilation, trade dress and stylistic convention of the B-OUT Universe and other materials you may view on or access through the B-OUT Universe. B-OUT Universe Content also includes all communication and comments made by users and any other information or material uploaded by users on the B-OUT Universe. Your use of the B-OUT Universe does not give you ownership of any B-OUT Universe Content.
5. Use of B-OUT Universe Content
You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any B-OUT Universe Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.
You may, to the extent the B-OUT Universe expressly authorizes you to do so, download or copy the B-OUT Universe Content, and other items displayed on the B-OUT Universe for download, for personal use only, provided that you maintain all copyright and other notices contained in such B-OUT Universe Content. You shall not store any significant portion of any B-OUT Universe Content in any form. Copying or storing of any B-OUT Universe Content for other than personal, noncommercial use is expressly prohibited without prior written permission from B-OUT, or from the copyright holder identified in such B-OUT Universe Content’s copyright notice.
All trademarks, logos, service marks and trade names, which includes “B-OUT,” “B • OUT.lgbt,” and the “b” logo (collectively, the “Trademarks”) displayed on the B-OUT Universe or on B-OUT Universe Content are registered or unregistered Trademarks of B-OUT, its business partners and/or others, and may not be used unless authorized by the Trademark owner. All Trademarks not owned by us that appear on the B-OUT Universe or on the B-OUT Universe Content, if any, are the property of their respective owners. Nothing contained on the B-OUT Universe should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the B-OUT Universe.
You acknowledge and agree that your access to and use of the B-OUT Universe, the B-OUT Universe Content and the services provided through the B-OUT Universe are valuable benefits that you receive by agreeing to and complying with the terms and conditions of this Agreement.
8. User Submissions
The Service will provide you with the ability to upload, submit, disclose, share, distribute or otherwise post (hereafter, “posting”) content such as images, videos, GIFs, metatags, discussions, messages, and comments, to the Services (the “User Submissions”).
By posting User Submissions on the B-OUT Universe or otherwise through the Service, you represent and warrant that:
- You own, or have the necessary licenses, rights, consents, and permissions to use and authorize B-OUT to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by B-OUT and these Terms of Service, and to grant the rights and license set forth in this Section;
- Your User Submissions, B-OUT's use of such User Submissions pursuant to these Terms of Service, and B-OUT's exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation.
- There is no need for any permission from or payment to any other person or entity, to use, and to authorize us to use, your User Submission in all manners contemplated by these Terms of Service (including the Submissions License set forth below);
- You are authorized to grant all of the aforementioned rights to the User Submissions to B-OUT and all users of the Service; and
- Your User Submission and your communication thereof does not fall under Prohibited User Conduct (set forth below) and other requirements of these Terms of Service.
Submissions License. You grant to B-OUT and its affiliates a non-exclusive, fully-paid, royalty-free, unrestricted, perpetual, irrevocable, fully transferable (in whole or in part), assignable, worldwide license with the right to grant and authorize sublicenses, under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control, to use, reproduce, transmit, perform, display, exhibit, distribute, index, comment on, modify, reformat, create derivative works based upon, perform and otherwise exploit your User Submission, in whole or in part, alone or in combination with other content or material, in all media formats and channels now known or hereafter devised (including by way of example but in no way a limitation, the internet, mobile devices, and through any future means or methods of downloading and/or streaming now known or hereinafter devised) in connection with the B-OUT Universe and B-OUT's (and its successor's, transferees', sublicensees' and their respective affiliates') business, including without limitation for promoting and redistributing part or all of the B-OUT Universe (and derivative works thereof), all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "Submissions License"). We cannot be responsible for maintaining your User Submission that you provide to us, and we may delete or destroy your User Submission at any time. You grant B-OUT and its affiliates, transferees and sublicensees (and their respective affiliates) the right to use your name andB-OUT Username that you submit in connection with such User Submission if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submission. You also hereby grant to each user of the B-OUT Universe a non-exclusive license to access your User Submission through the B-OUT Universe, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Submission as permitted by the functionality of the B-OUT Universe and these Terms of Service.
No Responsibility for User Submission. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Submission. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Submission.
You understand that B-OUT shall have the right to reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the B-OUT Universe or otherwise through the Service is the sole responsibility of the person from which such content originated and that B-OUT will not be liable for any errors or omissions in any content; and that B-OUT cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.
You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms of Service.
9. Public Forums and Communication
"Public Forum" means any area, site or feature that may be offered as part of any B-OUT Universe that offers the opportunity for you to submit your User Submissions for viewing by one or more B-OUT Universe users, such as discussions.
You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to your User Submission to a Public Forum. We cannot guarantee the security of any information you disclose through any of these media, nor that your User Submissions will remain available via the B-OUT Universe at all times; you make such disclosures at your own risk.
You are and shall remain solely responsible for your User Submission you submit on or through any B-OUT Universe under your B-OUT Username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. You understand that when using the B-OUT Universe, you will be exposed to User Submissions from a variety of sources, and that B-OUT is not responsible for the appropriateness, accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against B-OUT with respect thereto, and agree to indemnify and hold B-OUT, its parent, subsidiaries, affiliates, and/or business partners, harmless to the fullest extent allowed by law regarding all matters related to your use of the B-OUT Universe.
B-OUT does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and B-OUT expressly disclaims any and all liability in connection with User Submissions.
We owe you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to your User Submission which you submit.
Please keep in mind that you are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users. B-OUT will have no liability for your interactions with other users.
10. Prohibited User Conduct
You warrant and agree that, while accessing or using the B-OUT Universe, you will not:
- impersonate any person or entity or misrepresent your affiliation with any other person or entity, whether actual or fictitious, including anyone from the B-OUT Universe or B-OUT;
- submit any materials or communicate any information that is (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity;
- use the B-OUT Universe or its Service in violation of the intellectual property or other proprietary or legal rights of B-OUT or any third party;
- post content that actively promotes or glorifies self-harm. This includes content that urges or encourages others to: cut or injure themselves, embrace anorexia, bulimia, or other eating disorders, or commit suicide rather than, e.g., seeking counseling or treatment, or joining together in supportive conversation with those suffering or recovering from depression or other conditions.
- submit any materials or communicate any information that is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including your User Submission that is, or represents an attempt to engage in, terrorism, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity. Illegal activities should also include any activities that would pose a direct threat to public safety;
- submit any materials or communicate any information that is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
- use the B-OUT Universe or Service that B-OUT find, in its sole discretion, to use B-OUT’s resources or User Submissions with the effect of or displacing the market for B-OUT;
- post any links or content that contains pirated software, hacker programs or archives and warez sites;
- obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the B-OUT Universe through any means, including through means not intentionally made publicly available or provided for through the B-OUT Universe;
- engage in spidering, “screen scraping,” “database scraping,” harvesting of content, e-mail addresses or other personal information, or any other automatic or unauthorized means of accessing, logging-in or registering on the B-OUT Universe, or obtaining lists of users or other information from or through the B-OUT Universe, including, without limitation, any information residing on any server or database connected to the B-OUT Universe;
- use the B-OUT Universe or its features and services in any manner that could interrupt, damage, disable, overburden or impair the B-OUT Universe or interfere with any other party's use and enjoyment of the B-OUT Universe, including, without limitation, spamming, pinging, “flooding” servers with requests, mail bombing and piracy of software;
- use the B-OUT Universe or its services in violation of any applicable law; or
- attempt (or encourage or support any one else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the B-OUT Universe or its Service or try to influence/modify the voting system that is an integral part of the competitive system on B-OUT.
You alone are responsible for the content and consequences of any of your activities while you are visiting or using the B-OUT Universe.
11. Third Party Advertising and Sponsorship
You understand and agree that third-party advertising or sponsorship, in any commercially reasonable format, may be made available to users of the B-OUT Universe, including in connection with uploaded entries. You expressly agree that you shall not be entitled to any sharing or other compensation whatsoever for any revenue generated by (or received by B-OUT for) the display of any such advertisements or sponsorships.
12. Links From The B-OUT Universe to Third Party Site
13. Agreement Not with App Stores.
You acknowledge and agree that the availability of the B-OUT app is dependent on the third party from which you received the B-OUT app, e.g., the Android Market or Apple app store (each, an “App Store”). You acknowledge that this Agreement is between you and B-OUT and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the B-OUT app from it. You agree to comply with, and your license to use the B-OUT app is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
14. Right to Monitor and Editorial Control
B-OUT reserves the right, but does not have an obligation, to monitor and/or review all User Submissions posted to the B-OUT Universe or through the B-OUT Universe’s services or features by users, and B-OUT is not responsible for any such materials posted by users. However, B-OUT reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request. B-OUT shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any User Submission that is available on the B-OUT Universe in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind. We may also impose limits on certain features or restrict your access to part or all of the features or services without notice or penalty if we believe you are in breach of the guidelines set forth in this paragraph, our terms and conditions or applicable law, or for any other reason without notice or liability. If at any time B-OUT chooses, in its sole discretion, to monitor the User Submissions, B-OUT nonetheless assumes no responsibility for such User Submissions, no obligation to modify or remove any inappropriate User Submission, and no responsibility for the conduct of the user or other person or entity submitting any such User Submission.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS B-OUT, AND ITS AFFILIATES AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SPONSORS, ADVERTISERS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE B-OUT UNIVERSE; (II) YOUR USER SUBMISSION, INCLUDING B-OUT'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER SUBMISSION; (III) YOUR VIOLATION OF THESE TERMS OF SERVICE; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER SUBMISSION INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY B-OUT. B-OUT RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF B-OUT. B-OUT WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
16. Digital Millennium Copyright Act Take-Down Notice
B-OUT has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the designated Copyright Agent to receive Notification of Claimed Infringement ("Copyright Agent") is listed at the end of this Section.
Reporting Copyright Infringement. If you are a copyright owner or an agent thereof, and believe that any User Submission or other B-OUT Universe Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that B-OUT is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B-OUT’s Action. Upon receipt of proper notification of claimed copyright infringement, B-OUT will
- remove or disable access to the infringing material;
- notify the content provider or user that it has removed or disabled access to the material; and
- that repeat offenders will have the infringing material removed from the system and that B-OUT will terminate such content provider's or user's access to the Service.
Copyright Counter-Notice. If the content provider or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or pursuant to the law, the content provider or user must send a counter-notice containing the following information to the Copyright Agent listed below:
- A physical or electronic signature of the content provider or user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- Content provider's or user's name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's or user's address is located, or if the content provider's or user's address is located outside the United States, for any judicial district in which B-OUT is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, B-OUT may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at B-OUT's discretion.
Foreign Counter-Notification. If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for users who are infringers. So, if you are not sure whether content you posted on the B-OUT Universe is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading "Copyright Counter-Notification."
B-OUT’s designated Copyright Agent to receive notification of claimed infringement is:
ATTN: Copyright Agent
926 Madison Street, Ste 1A
Brooklyn, New York 11221
17. Void Where Prohibited
B-OUT controls and operates the B-OUT Universe from offices in the United States of America. We make no representation that B-OUT Universe Content is appropriate or authorized for use in all countries, states, provinces, counties or any other jurisdictions. Not all products or services mentioned on the B-OUT Universe are available to all persons or in all geographic locations or jurisdictions B-OUT, its business partners and vendors reserve the right to limit the provision of their products or services to any person, geographic area, or jurisdiction they so desire and to limit the quantities of any products or services that they provide. Any content, offer or service on the website is void where prohibited and the user automatically indemnifies B-OUT from any legal or statutory outcomes resulting from their decision or action. B-OUT reserves the right to block access to the B-OUT Universe by certain international users. When you access the B-OUT Universe, you are responsible for compliance with all applicable local laws.
18. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE B-OUT UNIVERSE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, B-OUT, ITS, AFFILIATES AND EACH OF THEIR OFFICERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MEMBERS AGENTS AND SUBCONTRACTORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL OR IN TORT, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS, THE B-OUT UNIVERSE AND YOUR USE THEREOF OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE. B-OUT MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT THE ACCURACY, CORRECTNESS, RELIABILITY OR COMPLETENESS OF THIS B-OUT UNIVERSE'S CONTENT, THE CONTENT OF ANY SITES LINKED TO THIS B-OUT UNIVERSE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE B-OUT UNIVERSE CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF B-OUT UNIVERSE (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM B-OUT UNIVERSE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH B-OUT UNIVERSE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY B-OUT UNIVERSE CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY B-OUT UNIVERSE CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE B-OUT UNIVERSE.
B-OUT, ITS AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MEMBERS AGENTS AND SUBCONTRACTORS EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION OF ANY KIND OF FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, MERCHANTABILITY, WORKMANSHIP, NON-INFRINGEMENT, OR TITLE AND OWNERSHIP.
B-OUT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE B-OUT UNIVERSE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND B-OUT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY DISCLAIMED.
"AS IS" AND "AS AVAILABLE" AND "WITH ALL FAULTS." YOU EXPRESSLY AGREE THAT THE USE OF THE B-OUT UNIVERSE IS AT YOUR SOLE RISK. THE B-OUT UNIVERSE, B-OUT UNIVERSE CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE B-OUT UNIVERSE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
B-OUT DOES NOT WARRANT THAT YOUR ACTIVITIES IN CONNECTION WITH OR USE OF THE CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, B-OUT SPECIFICALLY DISCLAIMS SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE CONTENT, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACCESS AND ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE B-OUT UNIVERSE, THE SERVICES OR THE CONTENT.
19. Limitation of Liability
IN NO EVENT SHALL B-OUT, OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE B-OUT UNIVERSE CONTENT (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF B-OUT UNIVERSE (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM B-OUT UNIVERSE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH B-OUT UNIVERSE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY B-OUT UNIVERSE CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE B-OUT UNIVERSE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS OF SERVICE OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE, AND WHETHER OR NOT THE B-OUT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT B-OUT SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. HOWEVER, IN NO EVENT SHALL THE TOTAL LIABILITY OF B-OUT FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE B-OUT UNIVERSE OR ANY OF THE B-OUT UNIVERSE CONTENT OR FUNCTIONS AT THE B-OUT UNIVERSE, EXCEED THE GREATER OF (I) THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH YOUR ACCESS, USE AND/OR PURCHASES MADE IN THE B-OUT UNIVERSE IN THE PAST THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE OR (II) USD$50.
The B-OUT Universe is operated by B-OUT from its facilities in the United States of America. B-OUT makes no representations that the B-OUT Universe is appropriate or available for use in other locations. Those who access or use the B-OUT Universe from other jurisdictions do so at their own volition and are responsible for compliance with local law.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF B-OUT’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, USER SUBMISSION OR OTHER TEXT/AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY OR LICENSED TO B-OUT AND/OR ITS AFFILIATES AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY B-OUT UNIVERSE, SERVICES, CONTENT, PRODUCT, PROGRAM, MUSIC, YOUR USER SUBMISSION OR OTHER TEXT/AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
20. Interstate Nature of Communications
When you visit our B-OUT Universe, you acknowledge that in using the Service to send electronic communications (including but not limited to email, search queries, uploading videos, photos and files to B-OUT Universe and other Internet activities), you will be causing communications to be sent through B-OUT’s computer networks, portions of which may be located in various locations in the United States and portions of which are located abroad. As a result, and also as a result of B-OUT’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the service results in interstate data transmissions.
21. Special Note to International Users
B-OUT may terminate, change, limit, suspend or discontinue any aspect of the B-OUT Universe at any time. B-OUT may restrict, suspend or terminate your access to the B-OUT Universe and/or this Agreement if we reasonably believe or suspect you have acted inappropriately on the B-OUT Universe or you are in breach of these Terms of Service or applicable law, or for any other reason without notice or liability. Additionally, B-OUT may terminate or limit use or access privileges to the B-OUT Universe of users who are repeat infringers of intellectual property rights and third party rights. You may terminate this Agreement by contacting us at email@example.com. This Agreement is effective until terminated by you, or by B-OUT for any reason, with or without notice. Upon any termination of this Agreement, you agree to discontinue your use and access of the B-OUT Universe and to immediately destroy all materials obtained from it.
In event that the account is terminated, we will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. We may retain and continue to display Information that you post in areas of the Service that are accessible by others. Also, information that you post in such areas may be retained, copied, reposted and distributed by others.
All provisions of the Terms of Service which by their nature should survive termination shall survive termination of this Agreement or any termination of your use of or subscription of the B-OUT Services, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitation of liability.
23. Apple App Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using a B-OUT app from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 23, the more restrictive or conflicting terms and conditions in this Section 23 apply, but solely with respect to B-OUT app from the Apple App Store.
Agreement not with Apple, but Apple terms govern if more restrictive: B-OUT and you acknowledge that this Agreement is concluded between B-OUT and you only, and not with Apple, and B-OUT, not Apple, is solely responsible for B-OUT app and the content thereof. To the extent this Agreement provides for usage rules for B-OUT app that are less restrictive than the Usage Rules set forth for B-OUT app in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
Limited license: The license granted to you for B-OUT app is limited to a non-transferable license to use B-OUT app on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple not responsible for maintenance and support: B-OUT is solely responsible for providing any maintenance and support services with respect to B-OUT app, as specified in this Agreement (if any), or as required under applicable law. B-OUT and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to B-OUT app.
No warranty from Apple: B-OUT is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of B-OUT app to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for B-OUT app to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to B-OUT app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be B-OUT’s sole responsibility.
Apple not responsible for product claims: B-OUT and you acknowledge that B-OUT, not Apple, is responsible for addressing any claims of you or any third party relating to B-OUT app or your possession and/or use of B-OUT app, including, but not limited to: (i) product liability claims; (ii) any claim that B-OUT app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit B-OUT’s liability to you beyond what is permitted by applicable law.
Apple not responsible for intellectual property infringements claims: B-OUT and you acknowledge that, in the event of any third party claim that B-OUT app or your possession and use of B-OUT app infringes that third party’s intellectual property rights, B-OUT, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
24. Apple as Third Party Beneficiary
B-OUT and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
25. Arbitration, Class Waiver, and Jury Waiver
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH B-OUT, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Applicability of Arbitration Agreement. All claims and disputes arising out of, relating to, or in connection with the Terms or the use the Services that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis, except that you and B-OUT are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and B-OUT. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and B-OUT.
Waiver of Jury Trial. YOU AND B-OUT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and B-OUT are instead electing to have all claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. If any litigation should arise between you and B-OUT over whether to vacate or enforce an arbitration award or otherwise, YOU AND B-OUT WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes will be resolved in a court as set forth in Section 26.
Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
Small Claims Court. Notwithstanding the foregoing, either you or B-OUT may bring an individual action in small claims court.
Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with B-OUT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE B-OUT UNIVERSE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
26. Forum and Venue
To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and B-OUT agree that all claims and disputes in connection with the Terms or the use of the Services will be litigated exclusively in the United States District Court for the Southern District of New York. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes in connection with the Terms or the use of the Services must be litigated exclusively in the Supreme Court of New York, County of New York. You and B-OUT consent to the personal jurisdiction of both courts.
27. Choice of Law
The laws of the State of New York, other than its conflict-of-laws principles, will govern all disputes between you and B-OUT, but only to the extent they are not preempted by the Federal Arbitration Act.
You agree that B-OUT may assign any of its rights and licenses granted hereunder and/or transfer, sub-contract or delegate any of its obligations under this Agreement without restriction. This Agreement is personal to you and you may not transfer or assign it to a third party.
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
If any part of this Agreement is determined to be invalid or unenforceable under applicable law including but not limited to the warranty disclaimers and liability limitations stated 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 Agreement shall continue in effect.
B-OUT may provide you with notices, including those regarding changes to these Terms of Service, by email or postings on the B-OUT Universe. If Notice is by e-mail, it will be provided to the e-mail provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty- four hours after an email is sent, unless B-OUT is notified that the email address is invalid. You may provide B-OUT with notices only by mail to the address indicated below:
916 Madison Street, Ste 1A, Brooklyn, New York 11221
This Agreement constitutes the entire agreement between you and B-OUT with respect to the B-OUT Universe and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and B-OUT with respect to the B-OUT Universe. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Any rights not expressly granted in this Agreement are reserved to B-OUT.
Updated on October 29, 2016