Terms of Use
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.
Please read
this Terms of Use Agreement (“Agreement”)
carefully before using this website (“Site”). The Site is provided by Twyxter, Inc. (“Twyxter,” “we,” “us,” or “our”) and any enterprise partners or
sponsoring organizations (collectively “Partners”)
as a platform to facilitate a variety of interactions and communications among
and between all registered and unregistered users (“Users”) that access or use the Site, any Mobile App or any other
aspect of the Service.
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:
·
Privacy
·
Copyright
·
Prohibited
Goods and Services
if you do not agree to
all of the Terms of Serv
2.
CHANGES
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.
3.
ELIGIBILITY
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;
2.
Will comply with this
Terms of Use Agreement;
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.
5.
REGISTRATION
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.
7.
CONTENT
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.
Privacy. Twyxter is committed to protecting your
personal information. We will not disclose your personally identifiable
information to third parties without your consent except in accordance with the
Twyxter Privacy Policy (“Privacy Policy”). The current Privacy Policy, shall
apply to any use of the Site, any Mobile App or other aspect of the Service and
is incorporated in this Agreement by reference. Twyxter will not edit, delete
or disclose the contents of a User’s data in connection with the Service unless
(a) reasonably necessary to perform the Service, (b) authorized by
the User, (c) otherwise permitted under the Privacy Policy or (d) Twyxter
reasonably believes that such action is necessary to (i) conform or comply
with any legal, regulatory, law enforcement or similar requirement or
investigation, (ii) protect or defend the rights or property of Twyxter or any
User or (iii) enforce the Terms of Service.
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.
The Site,
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.
IMPORTANT: If you desire to make any use of any
Mobile App or Site content (including User Content) for any purpose other than
personal, noncommercial reference, then you must first secure permission from
the owner of that content.
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.
12.
L
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.
IMPORTANT: You agree that you will not contribute any User Content unless you have all of the rights (including rights
from the copyright owner) necessary to grant Twyxter the use license, and to
satisfy all of the warranty requirements, described above.
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.
13.
L
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.
14.
TERMINATION
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.
The Service
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.
17.
INDEMNIFICATION
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.
Cookies. Our Site may use cookies such as settings led
cookies, feature led cookies, analytic cookies and/or third party cookies to
assess, operate and improve the Site and to operate other aspects of the
Service effectively. You can find out
more information about cookies here: www.allaboutcookies.org.
If you are happy for us to use cookies to run the Site you must indicate your
consent when you go through our registration process stating that you have read
and understood this Agreement and the Twyxter Privacy Policy.
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
The posting
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
21.
DISPUTES;
CHO
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
By
accessing and using the Site and/or other aspects of the Service, you consent
to and agree to be bound by the terms of the foregoing Agreement. This
Agreement, together with the Privacy Policy, the list of Prohibited Goods and
Services, any other documents incorporated by reference, and any other legal
notices published by Twyxter on the Site, shall constitute the entire agreement
between you and Twyxter concerning the Service. If we decide to change these
Terms, we will make an effort to post those changes on the web page so that you
will always be able to understand the terms and conditions that apply to your
use of the Service. Your use of the Service following any amendment of these
Terms will signify your assent to and acceptance of its revised terms.
24.
CONTACT
DETAILS
All notices
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
Twyxter, Inc.:
Customer Care – Terms of Use
Twyxter,
Inc.
Email: CC-TOU@twyxter.com
Copyright 2012 Twyxter, Inc. All rights reserved. Twyxter is a trademark of Twyxter, Inc.