Last Updated: March 1, 2013
THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND LINKS.IO DBA MOMMY (“MOMMY”), THE OWNER AND OPERATOR OF THE SERVICE. BY USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICE.
The Service is offered by Mommy to allow you to view, share, and store videos in different categories. You can invite friends, view videos from your social network, and upload videos that are available from other video providers.
If you are using or opening an account on the Service on behalf of a company, entity or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Entity.
You understand and agree that these Terms are entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
1.2 Changes to these Terms.
The Website and portions of the Service are owned and operated by Videostahser. Mommy reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Website. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. You should visit this page regularly to ensure your continued acceptance of these Terms. Your continued use of the Service after any revision to these Terms constitutes your binding acceptance of the revised Terms. Notwithstanding the preceding sentences of this Section.
1.1, no revisions to these Terms will apply to any dispute between you and Mommy that arose prior to the date of such revision.
1.2 Service Transformation.
The Service is new and subject to change at any time. If you are at any time dissatisfied with the Service, then your sole remedy is to discontinue use of the Service.
2. USE OF THE SERVICE
The Service is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you affirm that you are at least 13 years of age. Mommy does not seek through the Service to gather personal information from or about children under the age of 13.
4.1 Personal Security.
Be smart when using the Service or any Third Party Websites. You should not disclose personal information to strangers that would enable them to locate you offline. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Mommy’s sole discretion. Mommy reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
5. MATERIALS SUBMITTED TO THE SERVICE; LICENSE GRANT FROM YOU TO MOMMY
5.1 User Content.
This section governs any material that you upload or transmit to or through the Service including, without limitation, musical works, sound recordings, literary works, photographs, audiovisual works, artwork, comments, and messages (collectively, “User Content”). For the avoidance of doubt, this includes User Content that may be pulled from Third Party Sites (e.g., from your YouTube, Facebook, etc.). You are solely responsible for all User Content you submit to or through the Service. You agree, represent, and warrant that any User Content you upload or transmit to or through the Service or to us through email is truthful, accurate, not misleading, and offered in good faith, and that you have all rights, licenses, permissions, and authorizations necessary to upload or transmit the User Content to the Service and grant the rights to the User Content as set forth in these Terms. You must not upload or transmit any User Content to or through the Service where the rights have not been cleared for the use of such User Content on the Service.
5.2 Retention of Your Intellectual Property Rights.
BY UPLOADING OR OTHERWISE PROVIDING USER CONTENT TO THE SERVICE YOU ARE NOT SURRENDERING ANY INTELLECTUAL PROPERTY RIGHTS IN YOUR USER CONTENT THAT YOU MAY HAVE. RATHER, YOU ARE MERELY GRANTING MOMMY A LICENSE PURSUANT TO THE PROVISIONS OF THESE TERMS. YOU WILL CONTINUE TO OWN, TO THE EXTENT OF YOUR EXISTING RIGHTS, ALL OF YOUR USER CONTENT.
5.3 License Grants.
5.4 Waiver of Rights.
By uploading User Content to the Service you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You further waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your use of the Service or any User Content (or any portions thereof) you provide on or through the Service, including, without limitation, your name, likeness, voice, image, avatar, and persona or any advertising or publicity relating thereto. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you upload to the Service, during the term of these Terms. You expressly release Mommy and all of Mommy’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Content.
5.5 Requirement that You Be an Owner of or Fully Authorized to Grant the Rights To User Content.
If you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to upload or transmit to or through the Service, then you must not upload the User Content to the Service. In addition, if you only own the rights in and to an audiovisual work, for example, but not to any underlying musical works or sound recordings embodied in such audiovisual work, then you must not upload or transmit to or through the Service such audiovisual works unless you obtain all necessary rights, authorizations, and permissions with respect to such embedded sound recordings and musical works that grant you sufficient rights to sublicense Mommy according to these Terms.
5.6 Specific Rules for Musical Works.
If you are a composer or author of a musical work and have affiliated with a PRO, then you must notify your PRO of the royalty free license granted by you to Mommy through these Terms. Each PRO has different rules with respect to providing notification for a direct license. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty free license set forth in these Terms or have such music publisher enter into these Terms with Mommy. Just because you authored a musical work (e.g., wrote a song) doesn’t mean you have the right to grant Mommy the licenses contained in these Terms.
5.7 Confirmation of Rights.
Mommy reserves the right to demand confirmation from you in writing of all authorizations, licenses, permissions, and consents obtained by you (if any) with respect to any third-party materials embodied in User Content you upload to or transmit through the Service. If you fail to provide us with such confirmation upon request, we reserve the right to remove any or all of your User Content from the Service and to suspend or terminate your account with Mommy. We will have no liability to you for any actions taken by us pursuant to this Section 5.7.
5.8 Rights for Third Party Sites; Through-to-the-Audience Rights.
Just to be clear, the rights granted by you in these Terms include the right of Mommy to Use User Content you upload or submit to the Service through the Site and Third Party Sites, such as Facebook, and all of the rights granted herein by you are provided on a through-to-the-audience basis, meaning the owners or operators of such Third Party Sites will not have any separate liability to you or any other third party (e.g., a PRO) for User Content uploaded to, transmitted or publicly performed through the Service and made available through such Third Party Sites.
5.9 Representations and Warranties with Respect to User Content.
By uploading or transmitting User Content to or through the Service, you hereby represent and warrant to Mommy that (a) you have obtained all necessary rights, permissions, authorizations, licenses, and clearances to grant the licenses and rights set forth in these Terms with respect to such User Content and (b) the Use of such User Content in a manner consistent with these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Mommy or any Third Party Site on or through which the Service is made available to pay any fees of any kind to any third party, including, but not limited to, any sound recording copyright owner, any musical work copyright owner, any PRO (musical work or sound recording), any union, guild, non-featured vocalist or musician, engineer, producer, co-author, record royalty participant or any other person or entity, or any use or re-use fees for the Use of any sound recording or audiovisual work.
6.1 Log In Credentials.
In order to use the Service you will have to register for an account on the Service or log in using your Facebook credentials. You are responsible for maintaining the confidentiality of your log-in credentials in order to use the Service, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Mommy immediately of any unauthorized use of your log-in credentials or any other breach of security with respect to your account. Mommy will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Mommy of such unauthorized use or loss of your credentials.
6.2 Accuracy of Information.
You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Mommy. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an email address provided by you are returned as undeliverable, Mommy reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
7. OTHER PROHIBITED ACTIVITIES
7.1 In using the Service, you agree not to:
(a) Upload or otherwise transmit to or through the Service any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in User Materials;
(b) Upload or otherwise transmit to or through the Service any unlawful, harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind, any material that can cause harm or delay to the Service or computers of any kind;
(c) Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise);
(d) Create a false identify or impersonate another person or entity in any way;
(e) Restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person or collect information about users of the Service;
(f) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Mommy;
(g) Gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
(h) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Service, use of the Service, access to the Service or content obtained through the Service, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Mommy’s express written consent:
(i) framing, embedding and/or passing off User Materials obtained from the Service in such a manner as to present them as originating from a source other than the Service;
(ii) copying, caching or reformatting any User Materials for commercial purposes in any fashion whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Service to alternative delivery formats;
(iii) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
(iv) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Mommy or obtained from the Service.
(i) Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(j) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or any content on the Service, or features that enforce limitations on the use of the Service or any content on the Service;
(k) Use any scraper, spider, robot or other automated means of any kind to access the Service, except and solely to the extent permitted by these Terms and the features of the Service, deep-link to any feature or content on the Service, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
(l) Interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;
(m) Violate any applicable federal, state or local laws or regulations or these Terms; or
(n) Assist or permit any persons in engaging in any of the activities described above.
8. DISCLAIMER OF USER MATERIALS
YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU MAY BE EXPOSED TO MESSAGES AND USER CONTENT FROM A VARIETY OF SOURCES, AND THAT MOMMY IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER MATERIALS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER MATERIALS THAT ARE INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST MOMMY WITH RESPECT THERETO. UNDER NO CIRCUMSTANCES WILL MOMMY BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER MATERIALS, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY USER MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY USER MATERIALS POSTED, EMAILED, UPLOADED OR OTHERWISE DISPLAYED, PERFORMED OR TRANSMITTED VIA THE SERVICE. BY ACCESSING OR USING ANY USER MATERIALS TRANSMITTED ON OR THROUGH THE SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST MOMMY THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH USER MATERIALS.
9. INTELLECTUAL PROPERTY RIGHTS
The content made available on or through the Service, including without limitation, any text, software, graphics, photos, sounds, music, videos and interactive features, but excluding User Materials, may be protected by copyright or other intellectual property rights and owned by Mommy or third party licensors of Mommy. No material from the Service may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without written permission of the copyright owner. Modification of materials obtained from the Service, including, but not limited to, User Materials, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of Mommy or its licensors, unless you have obtain express written authorization to the contrary. All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to Mommy.
All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, are proprietary to Mommy or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
9.3 No Implied Rights.
There are no implied licenses granted in these Terms.
10. LINKS TO THIRD PARTY SITES
10.1 As you use the Service you may notice links to Third Party Sites.
These links are for convenience only. If you use these links, you will leave the Service. Certain of these Third Party Sites may make use of Mommy proprietary intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Mommy. Mommy is not responsible for the availability or content of these Third Party Sites or for any viruses or other damaging elements encountered in linking to a Third Party Site, whether or not Mommy is affiliated with the owners of such Third Party Sites. In addition, the provisioning of these links to Third Party Sites is not an endorsement or approval by Mommy of the organizations sponsoring such Third Party Sites or their products or services. These Terms do not apply to Third Party Sites, and you should review applicable terms and policies, including any relevant privacy policies, associated with any Third Party Sites, applications, software or services.
10.2 YOU AGREE THAT MOMMY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY ADVERTISING ON THE SERVICE.
You agree to indemnify, defend, and hold harmless Mommy and its parent, subsidiaries, affiliates, investors, sublicensees or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, contractors, and assigns and other Mommy users who use any User Materials you upload to or make available on the Service, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (1) your use or misuse of the Service; (2) your User Material, including Mommy’s or any user’s Use of your User Material consistent with these Terms; (3) your breach or other violation of these Terms, including any representations, warranties and covenants herein; or (4) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Material infringes or violates any third-party intellectual property rights or other proprietary rights, including any claims for the payment of so-called mechanical royalties, synchronization royalties, master use royalties, public performance royalties, or any other royalties claimed by any owner or other party claiming any right in or to all or any portion of any User Material uploaded or transmitted by you on or through the Service. Notwithstanding the foregoing, Mommy reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Mommy if Mommy, in its reasonable discretion, concludes that you are not adequately protecting Mommy’s interests or are incapable of protecting Mommy’s interests, and you agree to cooperate with Mommy’s defense of these claims. You agree not to settle any matter without the prior written consent from Mommy. Mommy will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
12.1 THE SERVICE, USER MATERIALS, AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
12.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MOMMY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOMMY, AN EMPLOYEE OR REPRESENTATIVE OF MOMMY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. MOMMY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL MOMMY OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE OR ANY CONTENT (INCLUDING USER CONTENT) MADE AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF MOMMY OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MOMMY OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID MOMMY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
14. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOMMY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MOMMY, MOMMY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT MOMMY WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
15. TERM AND TERMINATION
These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service.
15.2 Termination by Mommy.
Mommy may terminate your use of the Service or any of our features or services at any time and for any reason, with or without notice, for conduct violating these Terms or upon Mommy’s sole determination. You hereby agree to Mommy’s broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon Mommy’s termination of your use of the Service, Mommy may delete any of your User Materials available on or through the Service and terminate your access to your User Materials if those materials remain on the Service, without any liability to you.
15.3 Termination by You.
You are free to terminate your use of the Service at any time. You can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account on the Service, you may do so by sending an e-mail to firstname.lastname@example.org.
16. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
16.1 Mommy respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same.
Infringing activity will not be tolerated on or through the Service.
16.2 Mommy’s intellectual property policy is to:
(a) remove material that Mommy believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content posted to the Service by “repeat infringers.” Mommy considers a “repeat infringer” to be any user that has uploaded User Content to the Service and for whom Mommy has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. Mommy has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Mommy’s own determination.
16.3 Procedure for Reporting Claimed Infringement.
(a) If you believe that any content made available on or through the Service has been Used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mommy to locate the material;
(iv) Information reasonably sufficient to permit Mommy to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
16.4 Designated Agent Contact Information.
Mommy’s Designated Agent for notices of claimed infringement can be contacted at: Via E-mail: email@example.com
16.5 Counter Notification.
(a) If you receive a notification from Mommy that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Mommy with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Mommy’s Designated Agent through one of the methods identified in Section 16.4, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Mommy may be found, and that the subscriber will accept service of process from the person who provided notification under Section 16.3 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
16.6 False Notifications of Claimed Infringement or Counter Notifications.
The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Mommy] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Mommy reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law. For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 17 should be sent to the Designated Agent at copyright@MOMMY.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Mommy, the operation of the Service or any other matter should be sent to info info@MOMMY.com.
18. JURISDICTIONAL ISSUES
The Site and the Service are controlled and operated by Mommy from its offices within the State of Texas. Mommy makes no representation that materials on the Site or through the Service are appropriate or available for use in other locations. Those who choose to access or use the Service from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
19. DISPUTE RESOLUTION
19.1 Mandatory Arbitration.
Please read this carefully. It affects your rights. YOU AND MOMMY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Mommy, to you via any other method available to Mommy, including via e-mail. The Notice to Mommy should be addressed to: P.O. Box 5002, Austin, TX 78763-5002, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Mommy do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Mommy may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Mommy, then Mommy will promptly reimburse you for your confirmed payment of the filing fee upon Mommy’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Mommy agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) No Class Actions. YOU AND MOMMY AGREE THAT YOU AND MOMMY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
20.2 These Terms and your use of the Service shall be governed by the substantive laws of the State of Texas without reference to its choice or conflicts of law principles.
Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Mommy under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and you and Mommy hereby submit to the personal jurisdiction and venue of these courts.
20.3 Equitable Relief.
The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Mommy seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Mommy or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Mommy, including with respect to any User Materials, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
You and Mommy agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
20.5 Improperly Filed Claims.
All claims you bring against Mommy must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Mommy may recover attorneys' fees and costs up to $5,000, provided that Mommy has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Mommy to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mommy without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
21.4 No Agency.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Mommy as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Mommy other than pursuant to these Terms.
The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 4 (Service Security), 5 (Materials Submitted to the Service; License Grant from You to Mommy), 7.5 (License Grant for Lounge Postings), 8 (Other Prohibited Activities), 9 (Disclaimer of User Materials), 10 (Intellectual Property Rights), 11 (Links to Third Party Sites), 12 (Indemnity), 13 (Disclaimers), 14 (Limitation of Liability), 15 (Limitations; Basis of the Bargain), 18 (Privacy), 20 (Dispute Resolution), and 21 (Miscellaneous).
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
21.7 Entire Agreement.
This is the entire agreement between you and Mommy relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Mommy as authorized in these Terms.
The services hereunder are offered by Links.io, LLC. located at P.O. Box 5002, Austin, TX 78763-5002. You may contact us by sending correspondence to the foregoing address or by emailing us at firstname.lastname@example.org.