Last updated: November 1, 2012
1. ACCEPTANCE OF TERMS
Twyxter, Inc. provides online communities where the Users are encouraged to share information and interact openly with other members of their community. The terms and conditions outlined below are designed to promote continued use and enjoyment of this Site by protecting all parties involved.
The Site and any mobile applications that are made available by Twyxter (“Mobile Apps”), together with the content, tools, forums, information sharing, transactions (including user generated content, “User Content”) and other services available at the Site or through any Mobile Apps, are collectively referred to as the “Service”. The Service is made available to specific individuals and groups of individuals who are invited to register.
The following are the current terms and conditions for use of the Service. The Service is offered subject to acceptance without modification of all of the terms and conditions contained in this Agreement. The Agreement shall be deemed to include all other operating rules, policies and procedures that are referred to herein or that may otherwise be published at the Site or in any Mobile App by Twyxter from time to time (collectively, “Policies”), including without limitation, Policies that may be published in respect of:
if you do not agree to
all of the Terms of Serv
Twyxter reserves the right, at its sole discretion, to modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Twyxter will use reasonable efforts to notify Users of any material change at least 30 days in advance of the effective date of any change. Change notices may be communicated by postings at the Site or, in the case of registered Users, electronic mail. In any case, Users should periodically check the Terms of Service for changes. Continued use of the Service following such notice of any change to the Terms of Service constitutes User's acceptance of those changes. The Terms of Service may not otherwise be amended, except by a written agreement executed by User and Twyxter.
Twyxter may terminate the Service (including without limitation, the Site or any Mobile App), in whole or in part, at any time.
You must be at least 18 years of age to visit the Site and use the Service. If you do not so qualify, you are prohibited from accessing, using and registering for the Service. Twyxter will not collect personally identifiable information from any person that is actually known to us to be under the age of 18. If Twyxter becomes aware that a person under 18 has provided personally identifiable information, it will take steps to remove such information and terminate the respective account.
Twyxter may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time.
4. BASIC TERMS
Twyxter is not a party to any agreement between Users of the Service, does not actively participate in any User-to-User transactions, does not verify or guarantee the truth or accuracy of any information posted by any User, and does not verify or guarantee information related to the existence, availability, authenticity, quality, condition, value or legality of any goods or services offered through the Service (collectively “Items”). Twyxter does not and cannot guarantee that transactions entered into between Users will be completed, that payments promised by one User to another will be paid, that Items owned or used by any User will not be lost or damaged, and that any security deposits given by one User to another will be returned.
You are permitted to use the Service, only if you:
1. Are a registered User of the Service;
3. Use the Service only for personal and not commercial purposes;
4. Provide true, accurate, complete and current information, including your real name, when registering your User account and completing your profile;
5. Will not attempt to secure a registration under any name other than the one under which you were invited to register;
6. Are responsible for any activity that occurs on the Site or in conjunction with the Service under your personal user name or identity or while using the Service;
7. Assume full responsibility for keeping your password secure;
8. Acknowledge your sole responsibility for any User Content that you submit, post, and display on the Site or via any other aspect of the Service, including, but not limited to, all data, text, information, profiles, pictures, graphic images, audio and video clips, links and other such content;
9. Will not make false statements or provide inaccurate, deceptive, misleading libelous, or false information to or through the Service to any other User;
10. Will not use the Service in any way that we deem, in our sole discretion, to be abusive, exploitative, harassing, threatening, intimidating or otherwise harmful to any other User, person or entity;
11. Do not post User Content or Items in inappropriate categories or areas of the Service;
12. Grant each User of the Service a non-exclusive license to access your submissions through the Service and to use, reproduce, distribute, prepare derivative works of, display and perform such submissions as permitted through the functionality of the Service and under this Agreement;
13. Agree to comply with all local laws regarding online conduct and acceptable User Content;
14. Affirm that Twyxter and any Partners have the right to determine whether any of your submissions are appropriate and complies with this Agreement, remove any and/or all of your submissions, and terminate your User account with or without prior notice;
15. Will not create or submit unwanted email to other Users ('Spam');
16. Do not knowingly do anything to interfere with any other person’s enjoyment or use of the Service;
17. Agree that any loss of, or damage to, data is not the responsibility of Twyxter or the Service;
18. Agree that your use of the Site, Mobile Apps and any other aspect of the Service is at your own risk.
To ensure the
integrity of the Service, each User who completes the account registration
process must provide Twyxter with current, complete and accurate information,
as more specifically required by the then current registration procedures. By way of illustration and not
limitation: to register, Users may be
required to provide their name and zip code (or outside the
Upon acceptance, Twyxter will provide access credentials to the User. Each User is solely responsible for maintaining the confidentiality of its access credentials and other account information, and will be solely liable for any and all activities under its account. User shall be responsible for keeping all account information up-to-date. User agrees to notify Twyxter immediately of any unauthorized use of User's account or any other breach of security.
6. USER RULES AND CONDUCT
The Site, Mobile Apps and all other aspects of the Service are provided to Users only for their personal, noncommercial use. Any unauthorized use of the Service (including without limitation, accessing any aspect of the Service for which the User is not authorized, or any commercial use not expressly permitted in the Terms of Service, such as, for example, reselling any Mobile App, content or information to third parties) is expressly prohibited. Each User is solely responsible for all acts or omissions that occur under its account, username or password, including User Content posted to or transmitted via the Service.
As a condition of use, each User hereby promises that it will not use the Service for any purpose that is unlawful, commercial in nature (such as, for example, raising money for anyone, advertising or promoting any product, service, pyramid scheme or other venture) or prohibited by the Terms of Service or any other purpose not reasonably intended by Twyxter. User agrees to abide by all applicable local, state, national and international laws, regulations and rules. Without limiting the foregoing, Users shall not use the Service for the purpose of money laundering, bid rigging, price fixing or other unlawful collusion, price signaling or exchange of competitively sensitive data or information.
By way of example, and not limitation, each User agrees not to (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any User Content (including text, communications, software, photographs, videos, sound recordings, data or other information) using any communications service, discussion forum, directory, survey, feedback, Mobile App, or other service available on or through the Service, in any manner, that:
1. uses the Service to conduct, promote or encourage any illegal or unauthorized purpose and will not engage in activities that violate any applicable law or governmental regulation, including (without limitation) laws and regulations relating to (i) the possession, use, or distribution of weapons, alcohol, prescription drugs or other restricted substances, (ii) pornography, (iii) computer malware, (iv) professional licensing requirements, and/or (v) any other activity which is subject to criminal or civil penalty;
2. is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another's privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service;
3. disseminates any unlawful, harassing, defamatory, abusive, threatening, harmful, obscene or otherwise objectionable material or otherwise breaching any laws (for example, pornography, trade secrets, discriminatory content, incitement of violence and racial, religious or ethnic hatred);
4. creates User accounts by any automated means or under false or misleading pretenses, including by the use of a false e-mail address;
5. imposes an unreasonable or disproportionately large load on Twyxter's computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Site, any Mobile App or any other aspects of the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise;
6. interferes or attempts to interfere with the proper working of the Site, Mobile Apps or any other aspect of the Service, or any activities conducted on the Site or in conjunction with any aspect of the Service;
7. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Twyxter or any third party;
8. harvests, scrapes or collects any information from the Site, Mobile Apps or the Service;
9. Reveals any personal information about another individual, including another person's name, address, phone number, electronic mail address, credit card information or any other information that could be used to track, contact or impersonate that person, which information has not been provided by the User in Public Content;
10. infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any party;
11. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming"), chain letters or any form of lottery or gambling;
12. seeks to solicit information from or about minors;
13. disguises the source of User Content posted by User; or
14. impersonates any person or entity, including any employee, representative or affiliate of Twyxter.
In addition, Users of the Site, Mobile Apps and any other aspect of the Service are not permitted to:
1. post any Items that are on our list of Prohibited Goods and Services;
2. fail to deliver payment for Items purchased or rented by you unless the seller User has materially misrepresented the Item’s description;
3. fail to deliver Items purchased or rented from you unless the buyer/renter User fails to meet the posted terms;
4. post false, inaccurate, misleading, defamatory, or libelous User Content (including personal information);
5. copy or distribute any part of any part of the Site or the Service in any medium without Twyxter’s prior written authorization except as permitted through the functionality of the Service and under this Agreement;
6. change any part of the Site or the Service other than in ways that may be reasonably necessary for you to use the Site and the Service for the intended purposes;
7. modify, adapt or hack the Site, bypass any measures we may use to prevent or restrict access to the Site or any other aspect of the Service, or modify another website so as to falsely imply that it is associated with Twyxter or the Service;
8. attempt to gain access to secured portions of the Site to which you do not possess access rights;
9. take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
10. harvest or otherwise collect information about other Users, including email addresses, without their consent;
11. use the Service in any way that we deem, in our sole discretion, to be exploitative, harassing, or otherwise harmful to any other person or entity;
12. submit material that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such materials to the Site or in conjunction with the Service;
13. make, transmit or store (electronically or otherwise) any material without proper authority, license, consent or permission that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity); or
14. use the Service to post unsolicited commercial messages or generate unsolicited email advertisements or spam.
Twyxter may, at its sole discretion, immediately suspend or terminate any User's access to the Service should its conduct fail (or appear to fail) to strictly conform to any provision of this section. Twyxter reserves the right to refuse registration or terminate a User account for any reason at our sole discretion. If you violate any terms or conditions of this Agreement, you will be responsible for any losses and costs resulting from your breach.
The Site, Mobile Apps and other aspects of the Service may include features that enable Users to post information of interest to other Users (including without limitation, User Content). By merely providing access to the Site, Mobile Apps and any other aspects of the Service, Twyxter does not warrant the accuracy or legitimacy of any User Content provided by you or any other Users of the Service. You understand that all User Content posted on, displayed on, transmitted through, or linked from the Site, Mobile Apps and any other aspects of the Service, is the sole responsibility of the original poster. You are solely responsible for any User Content that you post, email or otherwise make available through the Service. You acknowledge that Twyxter does not pre-screen or approve User Content, but that Twyxter shall have the right (but not the obligation except as required by law) in its sole discretion to refuse, delete or move in whole or in part, at any time, any User Content that is available through the Service, for violating the letter or spirit of this Agreement or for any other reason. You understand that Twyxter does not control, and is not responsible for User Content made available through the Service, and that, despite our best efforts, by using the Service, you may be exposed to User Content that is offensive, indecent, inaccurate, illegal, misleading, or otherwise objectionable. Furthermore, the User Content and other content available on or through the Service may contain links to other websites that are completely independent of Twyxter. Twyxter makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any third party website. Your linking to any other websites is at your own risk. You agree that you must evaluate, and bear all risks associated with, the use of any User Content and that you may not rely on the User Content.
Inasmuch as Twyxter does not control User Content and is not involved in User-to-User dealings, each User agrees, in connection with any use of the Service: (a) to release Twyxter (and its licensors and suppliers) from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with use of the Service by such User (including any disputes with other Users using the Service); and (b) to attempt to settle any disputes directly with such other User or other third party.
Twyxter has no obligation to monitor the Service or any User’s use thereof. However, Twyxter reserves the right at any time and without notice to monitor, review, retain or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including law enforcement).
Users shall not post any confidential content or other information that it desires to keep secret.
8. ITEMS OFFERED TO OTHER USERS
You agree to offer in the Twyxter marketplace only Items that are permitted by this Agreement and to which you have lawful ownership rights or proper authorization.
You guarantee that you will not offer for exchange in the Twyxter marketplace any Items that:
· are counter to the public good, are unethical, or are liable to offend the sensibilities of minors.
· are misleading, obscene, pornographic, or related to prostitution or procurement
· you cannot legally possess, use, provide to other persons or exchange with other persons
· are stolen or is the product of a crime
· are considered hazardous or contain defects or substances that would put persons or goods in danger
· encourage murder, violence, public disorder or crimes against humanity
You further agree not to post any Items that are on the non-exhaustive list of Prohibited Goods and Services, hereby incorporated in this Agreement by reference.
9. PRIVACY AND SECURITY
User Account, Password and Security. You are responsible for maintaining the security and confidentiality of your User Account information and password. You are further responsible for any and all activity on your User Account. You agree to notify us in writing immediately if you suspect any unauthorized use of or access to your User Account. Twyxter and any Partners will not be liable for any loss or damage to you arising from unauthorized access to or use of your User Account caused by your failure to comply with this provision. To help us optimize the user experience and for the safety and protection of all Users, we reserve the right to monitor your User Account and the use of the Service in the name of your User Account for any or no reason.
We use reasonable precautions to protect the privacy of your User Account information, including the user name and password and password used for authentication (collectively your “Account Information”) when you log on to the Site. We utilize a Secure Socket Layer ("SSL") connection to protect your Account Information by encrypting information being transmitted to the Site. You are not permitted to circumvent the use of any encryption or security technologies employed for access, use, data storage or for any other reason related to the Site or the or any other aspect of the Service. While we may provide certain encryption technologies and may use other reasonable precautions to protect your confidential information, we do not and cannot guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions are free from delay, interruption, interception or error. You are ultimately responsible for use of your User Account and your Account Information by yourself and others, including those persons that gained unauthorized access to your User Account or Account Information through your acts and omissions. Please advise us immediately if there has been any unauthorized use of your User Account or Account Information or any other breach of security.
Third Party Content or Services. We may allow access to, or advertise, certain third parties from which you may purchase certain goods or services or access information not otherwise provided by Twyxter or Users. User Content published on the Site or on any other part of the Service by may also contain links to third party websites. You understand that we do not operate or control the products or services offered by such third parties and that such third parties are responsible for all aspects of order processing, fulfillment, billing and customer service related to the products and services they offer. We are not a party to any transactions entered into between you and such third parties and we do not assume any responsibility for ensuring that advertisements and other materials submitted by such third parties for inclusion on the Site or Mobile Apps are accurate and comply with applicable laws. Additional or different terms and conditions may apply when Users are accessing and using such other websites and mobile applications. If you decide to access any of the third party websites, view the third party content, or obtain goods or services from the third party, you do so entirely at your own risk.
Use of External Applications. The usage on the Site and the Service of the third-party applications, including but not limited to Microsoft Bing image search and Google Maps, is subject to implicit acceptance of the terms and conditions for each such provider. The Microsoft Services Agreement may be found at http://windows.microsoft.com/en-US/windows-live/microsoft-service-agreement and the Google Terms of Service as http://www.google.com/intl/en/policies/terms. The images and mapping information obtained via these services are offered as indications only.
10. FEES AND TAXES
Registration and usage of the Site and the Service are currently offered free of charge to registered Users. Twyxter reserves the right to add new fees and charges and to change at any time its policies regarding membership fees, commissions and other service fees. We will notify Users in advance of any such change via postings on the Site and/or via email. If Twyxter chooses to offer payment services as a convenience to Users, and if there are any transaction fees associated with the use of such payment services in conveying funds on behalf of or to Users, the schedule of such transaction fees will be clearly posted on the Site. Unless posted otherwise, our fees are indicated in U.S. dollars (USD) and are pretax.
Twyxter does not pay any taxes on behalf of the Users of the Site, Mobile Apps or any other aspect of the Service. You are responsible for paying all fees and applicable taxes associated with using the Service.
11. PROPRIETARY RIGHTS
You acknowledges and agree that the Site, Mobile Apps, Service and all content and materials created by or for Twyxter and made available on the Site, through the Mobile Apps or otherwise via the Service are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Twyxter (and its licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. We are not granting any license to you under any of those intellectual property rights by virtue of this Agreement. “Twyxter” is our trademark. Other product and company names that are mentioned on the Site or provided as part of the Service may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you in this Agreement.
including any subdomains, and any replacement or successor website, or portions
thereof is the property of Twyxter. Excluding all intellectual property
provided for use on the Site and the Service by other entities, the Service and
all elements thereof are owned by Twyxter. This includes, without limitation,
the text, software, scripts, graphics, photographs, artwork, sounds, music,
interactive features, trademarks, service marks and logos contained therein and
the computer code comprising the same (the “Materials”). The Materials and the design and arrangement of the
Materials are owned or licensed to Twyxter, subject to copyright and other
intellectual property rights under
Unless and only to the extent expressly authorized by Twyxter, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of the Site, any Mobile App, the Service or such content and materials. However, unless the Service otherwise restricts the you from doing so, you may download a copy of any Mobile App, and print or download a reasonable number of copies of the materials or content from the Site for your personal, noncommercial purposes; provided, that you retains all copyright and other proprietary notices contained therein. Systematic retrieval of data or other content from the Site by any you to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Twyxter's express prior written permission.
Any and all other content, including User Content and any other content not owned by Twyxter, is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners, except as permitted through the functionality of the Service and under this Agreement. The use of company names, product names and logos or images on the Site or Mobile Apps does not necessarily constitute an endorsement of the named company or products by Twyxter. We reserve all rights not expressly granted in and to the Site, the Service and the Materials.
By uploading, posting, submitting or otherwise distributing User Content of any kind to the Site or via any Mobile App or other aspect of the Service, you hereby:
· agree to grant us an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, translate, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale, otherwise commercially exploit and exercise any and all such rights, under any and all of your intellectual property rights related to the User Content in any manner we choose.; and
· represent and warrant that all User Content includes appropriate attribution to the copyright owner; and
· represent and warrant to Twyxter that you own or otherwise control all rights to such User Content and that public disclosure and use of the User Content by Twyxter (including without limitation, publishing content at the Site or via any aspect of the Service) will not infringe or violate the rights of any third party; and
· acknowledge and agree that the User Content is intended to and will be made available to, and used by Twyxter and other Users.
If you have any rights to the User Content that cannot be licensed to us (such as moral rights in some countries), you unconditionally and irrevocably waive the enforcement of such rights, and all claims and causes of action of any kind against us or related to Users and Partners anywhere in the world, with respect to such rights. With respect to other Users, you grant each User of the Site and the Service a non-exclusive license to access your submissions through the Site and the Service and to use, reproduce, distribute, prepare derivative works of, display and perform such submissions as permitted through the functionality of the Service and under this Agreement.
Notwithstanding the foregoing, the Service may provide you with the ability to remove some or all of the User Content posted by you. Following any such removal, Twyxter will use commercially reasonable efforts to discontinue any further display, performance and distribution of such User Content by Twyxter at the Site or in any Mobile App; provided, however, you acknowledge and agree that Twyxter may continue using such User Content in the same manner and for the same purposes as it did prior to removal of such content (such as, for example, content used in any advertising created prior to removal) and that Twyxter shall have no responsibility or liability in respect of any content that has been exported by Twyxter or shared with other Users via the Service or that has been downloaded or copied by Users to other websites, systems and devices.
Twyxter encourages ideas, suggestions and recommendations from Users regarding corrections, improvements and extensions to the Site, Mobile Apps and other aspects of the Service (collectively, “Feedback”). If you provide any Feedback to Twyxter in any form or by any means (whether through the Site, any Mobile App or other aspect of the Service, or by direct or indirect communication (e.g., email, surveys, conversations) with Twyxter or any of its officers, directors, employees, representatives, agents or Partners):
· You represent and warrant that the Feedback does not include any confidential or proprietary information of any third party;
· You acknowledge and agree that Twyxter is under no obligation of confidentiality, express or implied, with respect to the Feedback; and
· You agree to grant and does hereby grant to Twyxter a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner and for any purpose, and to permit third parties to do the same.
We may change or discontinue any User's access to all or any part the Site, Mobile Apps or any of the Service at any time without prior notice. We reserve the right to terminate this Agreement at our election and for any reason, without prior notice, and this Agreement will automatically terminate in the event that you violate any of the terms and conditions set forth below. In the event of any termination, you will immediately cease access to the Site and all aspects of the Service.
Either you or we may terminate your User Account, for any reason or no reason, without explanation, effective upon sending written notice to the other party. We reserve the right to immediately suspend or terminate your access to the Site and the Services, without notice, if we (in our sole discretion) determine that you have violated any term of this Agreement. In the event that your access is suspended due to the breach of this Agreement, you acknowledge and agree that any fee(s) you have paid for such Service will not be refunded. Following any termination of your User Account, we reserve the right to send a notice that you have been terminated to other Users with whom you have corresponded. You will not hold Twyxter (including its officers, directors, agents, subsidiaries, joint ventures or employees) liable for claims, demands or damages (actual and consequential) of any kind for the closing of a User Account.
15. DISCLAIMER OF ALL WARRANTIES
You expressly agree that your use of the Site, Mobile Apps and any other aspect of the Service is at your sole risk. The Site, Mobile Apps and all other aspects of the Service are provided "as is" and "as available" for your use, without warranties of any kind, either express or implied, including, but not limited to, the implied warranties of title, non-infringement, integration, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed, unless such warranties are legally incapable of exclusion.
Twyxter provides the Site and the Service on a commercially reasonable basis and Twyxter makes no representations or warranties that the Site, User Content, or any other content on the Site or the Service offered in connection with the Service are or shall remain uninterrupted or error-free, the User Content shall be non-infringing on any third party's intellectual property rights, the User Content shall be accurate or true, that defects shall be corrected, that the web pages on the Site or the servers used in connection with the Site and the Service are or shall remain free from any viruses, worms, time bombs, drop dead devices, trojan horses or other harmful components, or that any person using the Service will be the person that he or she represents himself or herself to be.
Twyxter does not guarantee that you will be able to access or use the Service at times or locations of your choosing, or that Twyxter shall have adequate capacity for the Service as a whole or in any specific geographic area. Twyxter disclaims any and all liability for the acts, omissions and conduct of any third parties, including other Users, in connection with or related to your use of the Service, including, but not limited to, Items you may exchange with or receive from another User in connection with your use of the Service and/or Items obtained or given by you in connection with your use of the Service.
Twyxter will not be a party to or in any way be responsible for monitoring any transaction between you and other Users or 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. You acknowledge and agree that you are exclusively and solely responsible for taking, and you will take, reasonable precautions in all interactions with other Users, whether online or in person, and that your use of the service is solely at your own risk.
16. LIMITATION OF LIABILITY
You acknowledge and agree that Twyxter is only willing to provide access to the Site, Mobile Apps and/o any other aspects of the Service if you agree to certain limitations of our liability to you and to third parties. You agree that the entire liability of Twyxter, Inc. and your sole remedy for any claims arising in connection with this Agreement, the use of the Service, and/or your communications, contracts and/or meetings in connection with the Service is to discontinue using all aspects of the Service. You agree that Twyxter shall not be responsible or liable for any unauthorized access to, alteration or use of your account, transmissions or data, any material or data sent or received or not sent or received through the Service. You agree that Twyxter is not responsible or liable for any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any third party or any infringement of another's rights, including intellectual property rights.
In no event will Twyxter, Inc. or its Partners, subsidiaries, owners, directors, officers, trustees, employees, agents or affiliates be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages arising from your use of the Site, Mobile Apps or other aspects of the Service and/or the use of any User Content posted, emailed, transmitted, or otherwise made available via the Service, or for any other claim related in any way to your use of the Service, including, but not limited to, (i) errors, mistakes, or inaccuracies of User Content or any other content, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Service or the Items obtained through use of the Service, (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 act or omission of another User of the Service or person with whom you communicate, contract or meet through your use of the Service, (v) any interruption or cessation of transmission to or from the Site and/or any other aspect of the Service, and/or (vi) any viruses, worms, time bombs, drop dead devices, trojan horses or other harmful components that may be transmitted to or through the Service by any third party or for any loss or damage of any kind, whether based on warranty, contract, tort, or any other legal theory, and whether or not the company is advised of the possibility of such damages.
You specifically acknowledge that Twyxter shall not be liable for any User Content 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.
is controlled and offered by Twyxter, Inc. from its facilities in the
If, notwithstanding the other provisions of this agreement, Twyxter is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Service, Twyxter’s liability will not exceed the greater of (1) the total of any fees paid by you to Twyxter with respect to your use of the Service in the six months prior to the date of the initial claim made against Twyxter (but not including any moneys paid by you to other Users), or (2) one hundred dollars (U.S. $100.00).
These limitations are independent from all other provisions of this agreement, shall apply to the fullest extent permitted by law in the applicable jurisdiction and shall apply notwithstanding the failure of any remedy provided herein. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. Because some states or jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states or jurisdictions Twyxter’s liability will be limited to the greatest extent permitted by law.
You agree to defend, indemnify and hold Twyxter, Inc. and its affiliates, subsidiaries, owners, directors, officers, trustees, employees, agents and Partners (collectively, the "Indemnified Parties") harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys' fees) assessed or incurred by any Indemnified Party, directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (iii) your use of the rights granted hereunder including, without limitation, any claims made by any third parties; (iv) your violation of any third party right including, without limitation, any copyright, property, or privacy right; and/or (v) any claim that your User Content caused damage to a third party, including, but not limited to, any other User of the Service. Twyxter reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Twyxter in asserting any available defenses. This defense and indemnification obligation will survive this Agreement and your use of the Service.
18. GENERAL PROVISIONS
Delivery of Service. Twyxter does not guarantee that your access to the Site or any other aspects of the Service will be free from interruptions, errors, computer viruses or other harmful components and does not guarantee that User Content and Account Information provided by registered Users is accurate, complete, up-to-date or current. Twyxter reserves the right to modify, interrupt, or end at any time any portion of the Service, without taking responsibility for the consequences resulting from these modifications, interruptions or ending of the Service.
No Agency Relationship; No Assignment. Twyxter and you are independent parties, each acting in its name and for its own purpose, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement, in whole or in part, to any third party without our prior, written consent, and any attempt by you to do so will be invalid.
Insurance. You are solely responsible for any loss or damage suffered in conjunction with the exchange of any Items between you and other Users of the Service. You are responsible for obtaining and maintaining any insurance which you deem necessary or advisable to cover any loss or damage to such Items and/or incurred by anyone in connection with the use or provision of the Items. To the extent that you maintain such insurance, you are solely responsible for ensuring that your policy covers the intended exchange of the Items.
Violations. You agree to promptly report to us any violation of the terms of this Agreement by you or any other User.
Force Majeure. Twyxter will not be liable to you for any lack of performance, or the unavailability or failure, of the Site or any other aspect of the Service, or for any failure or delay by us to comply with this Agreement, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
19. COPYRIGHT POLICY
of any content on the Site or via any aspect of the Service that infringes or
violates the copyright or other right (including intellectual property rights
and rights of privacy and publicity) of any person or entity is
prohibited. Twyxter has adopted the
following policy toward copyright infringement with respect to the Site and the
Service in accordance with the Digital Millennium Copyright Act (Pub. L. No.
105-304, 112 Stat. 2860 (Oct. 28, 1998)), a summary of which that was prepared by the
U.S. Copyright Office is located at
http://lcweb.loc.gov/copyright/legislation/dmca.pdf. The address of Twyxter’s Designated Agent to
Receive Notification of Claimed Infringement (the “Designated Agent”) is listed
at the end of this Copyright Policy. Twyxter
will (i) disable access to or remove material that it believes in good faith to
be copyrighted material that has been illegally copied and distributed by any
Third Party Provider or user of the Service; and (ii) terminate the account of
and access to the Service by any repeat offender. This policy applies to all aspects of all
services provided by Twyxter through or in connection with the Service. If you believe that your intellectual
property right (or such a right that you are responsible for enforcing) is
infringed by any content on the Site and/or other parts of the Service, please
write to us at the address shown below, giving a written statement containing
(i) identification of the copyrighted work or intellectual property right that
you believe to be infringed, (ii) identification of the content on the Site
and/or other parts of the Service that you request be removed, (iii) your name,
address, and daytime telephone number and e-mail address if available, (iv) a
statement that you have a good faith belief that the use of the copyrighted
work or the intellectual property right is not authorized by its owner, its
agent, or applicable law, (v) a statement that the information in your
statement is accurate and that, under penalty of perjury, the signatory is
authorized to act on behalf of the owner of the right you believe to be
infringed and (vi) the signature of the owner of the right that you believe to
be infringed or a person authorized to assert such infringement on behalf of
the owner. Any content on the Site
and/or other parts of the Service that infringes the copyright or other
intellectual property right of any person under
20. INTERNATIONAL USE
Twyxter makes no
representation that the Service is appropriate or legally available for use in
locations outside the
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Twyxter agree that any claim or cause of action arising out of or related to the Service must commence within one (1) year after the claim or cause of action arose; otherwise, such cause of action is permanently barred.
The Agreement shall be
governed by and construed in accordance with the laws of the State of
22. INTEGRATION AND SEVERABILITY
This Agreement (including the Policies) is the entire agreement between you and Twyxter with respect to access, use and operation of the Site, Mobile Apps and other aspects of the Service, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Twyxter with respect to the Service. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable. Our failure to enforce any provision of this Agreement will not be considered a waiver of the right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
23. CONSENT TO THIS AGREEMENT
24. CONTACT DETAILS
and communications required or permitted to be made pursuant to this Agreement
shall be sent by certified or registered mail, postage prepaid or electronic
mail as follows: if to you, to the most current email address or physical
address on file with Twyxter in association with your User Account; if to
Copyright 2012 Twyxter, Inc. All rights reserved. Twyxter is a trademark of Twyxter, Inc.