Last Updated: March 20th, 2009
Thank you for using AshevilleNow.com, a product of AshevilleNow, LLC ("AshevilleNow", "we" or "us")! AshevilleNow, LLC provides a website (the "AshevilleNow.com") that enables you to create user profiles and upload a variety of content types.
These Terms of Service, including any Guidelines and future modifications (collectively the "Terms of Service" or "Agreement") govern your use of AshevilleNow.com and is a legal contract between you and AshevilleNow, LLC.
By registering with us or using or browsing AshevilleNow.com, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, you can stop using AshevilleNow.com at any time.
You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using the Social Network on AshevilleNow.com as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms "you" and "your" in this Agreement refers to your company or legal entity.
"Content" means (i) any work of authorship in a Social Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Social Network or AshevilleNow.com. "Your Content" is any Content that you submit to a Social Network or AshevilleNow.com, either as a AshevilleNow Member, Network Member or Network Creator (all as defined below). If you are a Network Creator, Your Content includes the name, logo, trademark, brand features and other Content that you (and not the Network Members of Your Social Network(s) make available). Content does not include Network Code or AshevilleNow Code.
"Embeddable Widget" means any embeddable application provided and hosted by AshevilleNow.com that allows for the viewing or playing of audio, photos, video, text and other material on third party websites or services.
"Members" means AshevilleNow.com Users and Members.
"Network Creator" is a AshevilleNow Member who creates and operates one or more Social Networks or Groups on AshevilleNow.com. A Network Creator is by definition a Network Member of each of his or her Networks.
"Network Members" are AshevilleNow.com Members who have also registered with a particular Social Network on AshevilleNow.com using their AshevilleNow Profile. "Your Network Members" are Network Members who have registered with Your Social Network or Group.
"Network Member Data" means data provided by or collected from a Network Member by a Network Creator for a particular Social Network, such as profile data, including certain items of registration information (e.g. email addresses), answers to Social Network profile questions, forum posts, and statistical information about Content contributed. Network Member Data does not include the AshevilleNow Profile or any AshevilleNow Member Data.
"AshevilleNow Profile" is an account you create with AshevilleNow which includes a name, email address, date of birth and password. When you register as a Network Member on AshevilleNow.com, you use the email address and password portion of your AshevilleNow Profile to authenticate your login. Additionally, each Social Network of which you become a Network Member will have access to your date of birth, email address and name as stored in your AshevilleNow Profile and this information will be pre-populated into Your AshevilleNow Profile.
"AshevilleNow Profile" means information that, if you have provided to AshevilleNow that is aggregated by AshevilleNow into a master profile. "Your AshevilleNow Profile" is a AshevilleNow Profile created by you on AshevilleNow.com."AshevilleNow Technology" means the past, present and future content of AshevilleNow.com, including all software in any format, Embeddable Widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectible elements of AshevilleNow.com and all other tangible or intangible materials related to, displayed, performed or distributed on AshevilleNow.com and AshevilleNow.com itself, including, the selection, sequence, and "look and feel" and arrangement of items on AshevilleNow.com, and all AshevilleNow Marks (as defined below), domain names, patents, and other intellectual property. AshevilleNow Technology does not include Your Content or Your Code.
"AshevilleNow Code" means the proprietary portion of AshevilleNow.com that is used to interpret the Network Code and other services available on AshevilleNow.com.
"Premium Services" are services provided by AshevilleNow to Network Creators for a fee.
"Third Party Software" means software that is licensed to you by third parties, including software that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.
"Users" are all end users of AshevilleNow.com, and include you, any unregistered users, all AshevilleNow Members, and all Third Party Application Developers."Your Code" means any script, code, or other computer software uploaded by you to AshevilleNow.com.
2. Benefits of Creating Your Profile
AshevilleNow.com is designed to give AshevilleNow Members the ability to create a Profile to share content and promote themselves to our Users. Creating Profiles on AshevilleNow.com is free. Subject to this Agreement you control your Profile and own all of Your Code and Your Content. AshevilleNow does not claim any ownership rights in Your Code or any of Your Content.
3. Premium Services and Payment
There are two primary ways that we support AshevilleNow.com: through advertising and Premium Services. AshevilleNow may choose to temporarily change the fees for the Premium Services for promotional or new services, and such changes are immediately effective when AshevilleNow posts the temporary promotional event or new service on AshevilleNow.com. Any changes to fees for Premium Services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on AshevilleNow.com. The changes shall only apply prospectively to the Premium Services you've purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.
You are responsible for paying all fees and applicable taxes associated with the Premium Services in a timely manner with a valid payment method. You authorize AshevilleNow to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein "Payment Method") for all charges to your accounts with AshevilleNow. Your Payment Method will be charged the current fee for the Premium Service you choose on the date that you click on the "Purchase" button in the ordering process. Today, we only offer recurring payments. You agree that AshevilleNow may automatically charge the fee to your Payment Method at the beginning of each recurring period. For example, if you choose a Premium Service with a monthly plan, you will be billed every month on the anniversary date of the date you clicked the "Purchase" button. Additionally, we may offer a pre-pay payment option for payment of Premium Services ("Pre-Payment Plan"). If you opt for Pre-Payment plan, your Payment Method will be charged the then-current fee for that Premium Service at the commencement of each renewal period.
You acknowledge and agree that any credit card and related billing and payment information that you provide to AshevilleNow may be shared by AshevilleNow with companies who work on AshevilleNow's behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to AshevilleNow and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. You agree to pay AshevilleNow all charges incurred under your account for any Premium Service in which you or anyone else who uses your account (including children, family and friends) enroll in accordance with this Agreement and any applicable Premium Services policies. If your Payment Method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand, (b) AshevilleNow may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) AshevilleNow reserves the right to either suspend or terminate your Premium Services or your account with AshevilleNow, including deletion of your Social Network from AshevilleNow.com.
Except as may be set forth in applicable Premium Service Policies or Section 27 (Termination), any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to AshevilleNow within sixty (60) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of AshevilleNow.
You are responsible for paying any governmental taxes imposed on your use of AshevilleNow.com, including, but not limited to, sales, use, or value added taxes. If requested, you will promptly furnish to AshevilleNow the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that AshevilleNow is obligated to collect such taxes, the applicable tax will be added to your billing account.
4. Your Code and Licenses to Your Code
You own Your Code. AshevilleNow does not claim any ownership rights in Your Code. If you upload any of Your Code to AshevilleNow.com, subject to the licenses granted by you herein, you continue to have the right to use and license Your Code in any way you choose (and you are responsible for protecting those rights as appropriate). You may only upload Your Code to AshevilleNow.com, for use on Your Profile, provided that Your Code complies with the terms of this Agreement. At any point, you can take Your Code from Your Social Network and cancel your account and AshevilleNow shall not retain any license rights, except as provided below.
You hereby grant AshevilleNow a non-exclusive, worldwide, perpetual, transferable, irrevocable, sublicenseable, royalty-free right and license to access, use, reproduce, store, modify, distribute, publicly display, publicly perform and create derivative works of Your Code (a) for the purpose of operating and making Your Social Network available on AshevilleNow.com and in all current and future media in which AshevilleNow.com may now or hereafter be distributed or transmitted; or (b) for our internal business purposes. Additionally, you hereby grant AshevilleNow a non-exclusive, world-wide, transferable, irrevocable, sublicenseable royalty-free right and license to continue using, reproducing, archiving, caching, creating derivative works, publicly displaying and performing in perpetuity, any of Your Code that is incorporated into AshevilleNow.com, provided that AshevilleNow shall not use or distribute Your Code on a stand alone basis. The foregoing license does not limit AshevilleNow's rights under any third party or open source license in which Your Code is licensed.
You are responsible for making sure that you have all rights in Your Code you upload or use and all rights that are necessary for you to grant the foregoing licenses to Your Code. You are solely responsible for ensuring that Your Code is compatible with any AshevilleNow Technology. AshevilleNow disclaims any liability or responsibility for any unauthorized use of Your Code by third parties or Users of Your Social Network and is not responsible for protecting Your Code.
5. Your Content and Licenses to Your Content
AshevilleNow does not claim any ownership rights in Your Content. After posting Your Content, you continue to retain ownership of Your Content, and you continue to have the right to use and license Your Content in any way you choose. The Content that you upload to any Social Network needs to comply with the terms of this Agreement. At any point, you can take Your Content from Your Social Network and cancel your account and AshevilleNow does not retain any license rights except as provided below.
You hereby grant AshevilleNow, during the course of your usage of AshevilleNow.com, a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Your Content (a) for the sole purpose of operating and making Your Content available on AshevilleNow.com and in all current and future media in which AshevilleNow.com may now or hereafter be distributed or transmitted or (b) for our internal business purposes; and (ii) disclose metrics regarding Your Content on an aggregated basis for advertising, marketing and business development purposes. If you wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. Without limiting the foregoing, AshevilleNow reserves the right to retain copies of Content for archival purposes after termination of the Agreement.
You hereby agree that if Your Content is removed from any Social Network due to a violation of these Terms, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, AshevilleNow shall have the right to use, reproduce and exploit Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of AshevilleNow, any individual, or the general public.
You are responsible for making sure that you have all rights in Your Content, including the rights necessary for you to grant the foregoing licenses to Your Content. You are solely responsible for Your Content. You understand that whether or not Your Content is published or marked private by you, AshevilleNow does not guarantee any confidentiality or privacy with respect to any of Your Content. You agree not to include any advertising in any of Your Content unless you purchase the Premium Service to run your own advertising on Your Social Network.
Additionally, you understand and agree that Your Content that is displayed on AshevilleNow.com may continue to appear on AshevilleNow.com, even after you have terminated your AshevilleNow Member or Network Member account or terminated these Terms of Service, as portions of Your Content may have been incorporated into Member profiles, RSS feeds or other features.
In addition to the rights, licenses and privileges referred to above, you agree that AshevilleNow, in its sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of AshevilleNow.com, and any products, goods, features, capabilities and/or services associated with AshevilleNow.com.
As a Profile Creator you acknowledge that AshevilleNow and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any Social Network or AshevilleNow.com in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.
If a Member Profile is removed from AshevilleNow.com, the Content associated with that Social Network may also be deleted at the discretion of the Member or AshevilleNow. We encourage you to be sure you are comfortable with this possibility before contributing Your Content to AshevilleNow. You should be aware that AshevilleNow is not required and may not keep back-up copies of Content (including Your Content) on AshevilleNow.com once the Member Profile or Content is deleted. Additionally, AshevilleNow makes no guarantee, either during or after the term of this Agreement, that Your Content will be safely stored on AshevilleNow.com and you should independently back-up Your Content.
6. Licenses From AshevilleNow
License to AshevilleNow.com
During and subject to the terms and conditions of this Agreement, AshevilleNow hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to access and use AshevilleNow.com solely to enable your use of the AshevilleNow Member Services and AshevilleNow Member Profile. For clarity, aside from the foregoing limited license, you acknowledge that you shall acquire no rights in the AshevilleNow Code or Network Code.
You agree that, as between you and AshevilleNow, all the intellectual property rights in AshevilleNow.com, which does not include Your Content or Your Code, are owned by AshevilleNow or its licensors.
License to Embeddable Widgets
During and subject to the terms and conditions of this Agreement, AshevilleNow hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to incorporate Embeddable Widgets into other third party websites or your own personal websites. The foregoing license shall terminate immediately upon expiration or termination of this Agreement or removal of Your Member Profile from AshevilleNow.com by AshevilleNow or you and you agree to immediately stop using such Embeddable Widget.
Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:
- Run, rent, lease, loan, or sell access to AshevilleNow.com or the AshevilleNow Technology.
- Decompile or reverse engineer or attempt to access the source code of the software underlying AshevilleNow.com or AshevilleNow Technology.
- Copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any AshevilleNow Technology.
- Access AshevilleNow.com to build a product using similar ideas, features, functions, interface or graphics of AshevilleNow.com.
- Access (or attempt to access) any service on AshevilleNow.com by any means other than as permitted in these Terms of Service.
- Circumvent, disable or otherwise interfere with security related features of the Embeddable Widget or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Embeddable Widget or the Content and Third Party Content therein.
- Access AshevilleNow.com to upload Your Code or Your Content to cause a breach of security to AshevilleNow.com or any Social Network or interfere with the proper working of AshevilleNow.com or prevent others from using AshevilleNow.com.
- Delete the copyright and other proprietary rights notices on AshevilleNow.com or Embeddable Widgets.
7. Independent Development; Feedback
You agree that AshevilleNow may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing AshevilleNow from creating or fully exploiting such software, content and other items, without any obligation to you.
You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to Your Member Profile or AshevilleNow.com (including the Network Code and AshevilleNow Code) ("Feedback"). If you elect to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant AshevilleNow a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and otherwise exploit Feedback.
8. AshevilleNow Trademarks and Legal Notices
AshevilleNow trademarks, logos, images, service marks, trade names and other distinctive branding features used on AshevilleNow.com "AshevilleNow Marks" are the trademarks of AshevilleNow and may not be used without permission. AshevilleNow is not granting you a license under any intellectual property right to the AshevilleNow Marks. Other trademarks, logos, and trade names that may appear on AshevilleNow.com are the property of their respective owners.
9. AshevilleNow Ownership Rights
You agree that, as between you and AshevilleNow, AshevilleNow owns all right, title and interest, including, all intellectual property rights, in and to the AshevilleNow Technology. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in this Agreement. Any rights not expressly granted herein, are reserved to AshevilleNow. You agree to abide by all copyright notices, information, or restrictions contained in any part of AshevilleNow.com. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on AshevilleNow.com, including notices on any AshevilleNow Technology you download, transmit, display, print or reproduce from or using AshevilleNow.com.
10. Advertising and Promotion for Members
We have the exclusive right to sell, run and/or serve third-party advertising on AshevilleNow. You agree not to include any advertising for anything other than Your Profile or your personal business, including ads served via an ad-server service like Google AdSense, in any Social Network, any of Your Code, or Content you provide on AshevilleNow. If you pay the Premium Service fees to run your own ads, however, you may include third-party advertisements or sponsorships on Your Profile Content. If you run your own ads, AshevilleNow will have the option, which we may exercise on notice to you, to offer and display, in partnership with you, all or some of such advertisements on Your Profile Content. AshevilleNow may establish general policies and guidelines surrounding the running of your own ads ("Advertising Policies"). Any such Advertising Policies are part of this Agreement and are subject to change from time to time.
YOU AGREE THAT ASHEVILLENOW WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR PROFILE CONTENT.
11. Third Party Content and Hyperlinks to Third Party Sites
Content from other Members or advertisers, including, information about third party products and services and any Third Party Applications, is made available to you ("Third Party Content") on AshevilleNow.com. The inclusion of Third Party Content on AshevilleNow.com does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and AshevilleNow has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, AshevilleNow or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any Social Network) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using AshevilleNow.com you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use AshevilleNow.com at your own risk.
Additionally, AshevilleNow or third parties may provide hyperlinks on AshevilleNow, or any other form of link or redirection of your connection to other sites ("Third Party Sites"). These Third Party Sites are in no way integrated into AshevilleNow.com and the inclusion of any link on a Social Network does not imply AshevilleNow's affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. AshevilleNow expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through AshevilleNow.com. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
12. Representations and Warranties.
You hereby represent and warrant to AshevilleNow that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of AshevilleNow.com including your promotional or other activities off AshevilleNow.com that relate to Your Social Network; (b) you have the right to grant to AshevilleNow the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code and Your Content; (c) Your Code and Your Content does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content or Your Member Profile contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with AshevilleNow.com, or intercept or expropriate any system data or personal information from AshevilleNow.com.
13. Acceptable Use and Conduct
You are solely responsible for your conduct, Your Member Profile, Your Code, and Your Content on AshevilleNow.com. We want to keep the Member Profiles on AshevilleNow safe and fun for everyone and the use of AshevilleNow.com for unlawful or harmful activities is not allowed. In defining "safe and fun," you specifically agree that:
You will not post, email or make available any Content to Users or use AshevilleNow.com:
- In a manner that infringes, violates or misappropriates any third party's intellectual property rights or other proprietary rights or contractual rights;
- in a manner that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- to engage in spamming, "chain letters," "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms of Service, any applicable laws, regulations or generally-accepted advertising industry guidelines, including to other Users whether on or off AshevilleNow.com in connection with Your Social Network;
- in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaiAshevilleNow financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
- in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another's privacy;
- in a manner that is harmful to minors in any way;
- in a manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by AshevilleNow;
- to impersonate a AshevilleNow employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to a Member Profile or AshevilleNow.com without authorization;
- to interfere or attempt to interfere with the proper working of AshevilleNow.com or prevent others from using AshevilleNow.com, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to AshevilleNow.com, or that otherwise negatively affects other persons' ability to use AshevilleNow.com;
- to use any manual or automated means, including agents, robots, scripts, or spiders, to access or manage any Member Profile Creator's account or to monitor or copy AshevilleNow.com (including the Network Code or AshevilleNow Code) or the content contained therein;
- to facilitate the unlawful distribution of copyrighted content;
- in a manner that includes personal or identifying information about another person without that person's explicit consent;
- in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through AshevilleNow.com or to Users; and
- in a manner that constitutes or contains any form of advertising or solicitation if (1) posted in Your Content; or (2) emailed to Users who have requested not to be contacted about other services, products or commercial interests.
Additionally, you agree not to:
- "Stalk" or otherwise harass anyone;
- Collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations;
- Request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of AshevilleNow.com, including AshevilleNow Profile passwords from a Member, or to proxy authentication credentials for any Member of AshevilleNow.com for the purposes of automating logins to AshevilleNow.com;
- Use any profanity or the description or name of any illegal activity in the Content of Your Member Profile;
- Use the name "AshevilleNow" as any part of the name of Your Member;
- Post any Content containing child pornography. AshevilleNow absolutely does not tolerate this and will report any suspected instances of child pornography, including reporting any AshevilleNow Member Data, to law enforcement, including the National Center for Missing and Exploited Children;
- Post any Content that AshevilleNow determines in its sole discretion, depicts or contains rape, extreme violence, murder, bestiality, incest, or other similar content;
- Post any Content that AshevilleNow determines constitutes pornography or is adult in nature.
- Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from Member Profiles and AshevilleNow.com - except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or "well-behaved" web services/RSS/Atom clients. We reserve the right to define what we mean by "well-behaved";
- Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on AshevilleNow's infrastructure;
- Attempt to gain unauthorized access to AshevilleNow's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, AshevilleNow.com;
- Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of AshevilleNow.com or for using it for purposes unrelated to AshevilleNow); and
- Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of AshevilleNow.com.
You agree not to authorize or encourage any third party to use AshevilleNow.com to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify AshevilleNow in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in this Agreement.
14. AshevilleNow.com Policies
AshevilleNow may establish general polices and limits concerning use of AshevilleNow.com ("AshevilleNow.com Policies"), including (and without limitation) the maximum number of days that Member Profile Content and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you or Your Member Profile, the maximum number of times and duration for which you may access AshevilleNow.com or Social Networks in a given period of time, the maximum bandwidth used by Your Member Profile or Content, and the maximum CPU power used by Your Member Profile or Content.
15. AshevilleNow's Relationship with Users
You acknowledge that AshevilleNow may terminate your account, and remove your AshevilleNow Member Profile, as well as disable your access to any and all Member Profiles and AshevilleNow.com, in accordance with the terms of this Agreement.
16. Copyright Infringement/Digital Millennium Copyright Act Compliance
It is AshevilleNow's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act ("DMCA"). AshevilleNow may remove any allegedly infringing Network Code or Content without any liability to you.
AshevilleNow will promptly terminate without notice any Member's access to AshevilleNow.com, including access to any Member Profile, in appropriate circumstances where the Member is a "repeat infringer" of copyrights. Generally, AshevilleNow will consider a Member a repeat infringer if it has received more than two third-party notices of alleged infringement concerning Content or Network Code posted by that Member anywhere on AshevilleNow.com. AshevilleNow, however, reserves the right to identify and terminate Members under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that Member.
17. Network Member Data
Through our AshevilleNow Member Services, AshevilleNow collects AshevilleNow Member Data from Members and general information about a User's use of Your Member Profile.
You acknowledge that AshevilleNow may receive requests from Users or persons authorized to act on behalf of such Users to modify or delete personally identifiable information relating to such Members on Your Social Network. Accordingly, you agree that, within 24 hours of any email request by AshevilleNow, you will: (a) delete all Network Member Data and other personally identifiable information in your possession or control relating to a particular User as specified by AshevilleNow; and (b) confirm such deletion in email notice to AshevilleNow.
AshevilleNow is not required to keep back-up copies of Network Member Data on AshevilleNow.com once the Member Profile, Social Network or Network Member Data is deleted. AshevilleNow makes no guarantee that Network Member Data will be safely stored on AshevilleNow.com. To be safe, you should independently back-up Network Member Data.
18. Your Social Network
To enable a great experience for all Users on AshevilleNow.com, if you are a Network Creator, you agree to ensure each Social Network you create or manage does not degrade the performance of AshevilleNow.com. If your Social Network(s) exceed the quotas and limitations set by AshevilleNow (e.g., storage or bandwidth) or otherwise degrades performance of AshevilleNow.com or other services in any way, we may suspend your Social Network(s) at our sole discretion and without notice.
You agree not to harvest any email addresses from Member Profiles, Social Networks or AshevilleNow.com for the purpose of sending email in violation of applicable law or otherwise violate the "Acceptable Use and Conduct" provisions of this Agreement.
You acknowledge that AshevilleNow may terminate the account of any Member (including Your Social Network Members) in accordance with these Terms of Service.
Your Member Profile and Social Network shall not be designed or implemented in a way that, as determined by AshevilleNow in its sole discretion, might mislead a User into believing that: (i) he or she is interacting directly with AshevilleNow when interacting with Your Member Profile or Your Social Network, or (ii) any of Your Member Profile or Your Social Network was created by or are endorsed by AshevilleNow. Because we want you to have as much freedom over your Member Profile and Social Network as possible, AshevilleNow takes no responsibility for any Content located in Your Member Profile or Your Social Network and AshevilleNow has no obligation to monitor such Content or Your Social Network.
You acknowledge that AshevilleNow also reserves the right to remove, preserve, and disclose any information or Content on any Member Profile, Social Network or account it deems necessary or appropriate to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, (e) protect the rights, property, or safety of AshevilleNow, its Users, and the general public, or (f) investigate or defend ourselves against third-party claims or allegations.
19. Your Account
You need to register and create a AshevilleNow Profile in order to become a AshevilleNow Member on AshevilleNow.com. You are responsible for keeping your AshevilleNow Profile password secure. AshevilleNow Profiles are non-transferable. You will be solely responsible and liable for any activity that occurs under your AshevilleNow Profile. AshevilleNow reserves the right to log off or deactivate Member accounts that are inactive for an extended period of time.
You may not use anyone else's account, AshevilleNow Member at any time, without the permission of the account holder. You should never give out your password to another individual or entity. AshevilleNow will not be liable for any loss that you may incur as a result of someone else using your AshevilleNow Profile, or password, either with or without your knowledge. However, you may be held liable for losses incurred by AshevilleNow or another party due to someone else using your AshevilleNow Profile, or password. In other words, please be careful with your identity and passwords.
20. Disclaimer of Warranties
YOUR USE OF ASHEVILLENOW.COM, AND ALL NETWORK CODE, ASHEVILLENOW CODE, THIRD PARTY SOFTWARE, NON-ASHEVILLENOW CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. ASHEVILLENOW.COM AND ALL NETWORK CODE, ASHEVILLENOW CODE, THIRD PARTY SOFTWARE, NON-ASHEVILLENOW CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ASHEVILLENOW AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. ASHEVILLENOW AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT ASHEVILLENOW.COM, OR ANY NETWORK CODE, ASHEVILLENOW CODE, THIRD PARTY SOFTWARE, NON-ASHEVILLENOW CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ASHEVILLENOW.COM OR THE SERVER THAT MAKES ASHEVILLENOW.COM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ASHEVILLENOW MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON ASHEVILLENOW.COM OR YOUR SOCIAL NETWORK (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR SOCIAL NETWORK OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-ASHEVILLENOW CODE WITH ANY ASHEVILLENOW TECHNOLOGY.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ASHEVILLENOW.COM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ASHEVILLENOW OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM ASHEVILLENOW.COM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
You agree to indemnify, defend, and hold harmless AshevilleNow, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to:
- Your Code, Your Content, Your Member Profile or Your Social Network;
- Your use of any Non-AshevilleNow Code or Third Party Applications;
- Your use or misuse of, or connection to, AshevilleNow.com;
- Your breach or alleged breach of this Agreement;
- Your violation of any rights (including intellectual property rights) of a third party;
- Your use or misuse of any User data (including AshevilleNow Member Data and Network Member Data;
- Your breach or alleged breach of any agreement or policy between you and other Users.
AshevilleNow reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of AshevilleNow. AshevilleNow will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
22. Your Interactions with Other Users
Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party AshevilleNow is under no obligation to become involved.
You release AshevilleNow, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users.
23. Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL ASHEVILLENOW OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ASHEVILLENOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE ASHEVILLENOW.COM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO ASHEVILLENOW BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN ASHEVILLENOW (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON ASHEVILLENOW.COM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
24. Changes to AshevilleNow.com
AshevilleNow reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing AshevilleNow.com or any part thereof with or without notice. AshevilleNow will not be liable to you or to any third party for any modification, suspension or discontinuance of AshevilleNow.com.
We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.AshevilleNow.com or elsewhere on AshevilleNow.com. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of AshevilleNow.com after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing User (including AshevilleNow Member, Network Member or Network Creator) on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.AshevilleNow.com or elsewhere on AshevilleNow.com. The revised version will apply to you immediately if you are a User who registers or first uses AshevilleNow.com on or after the posting of the revised version.
26. Term and Termination
This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your membership on AshevilleNow.com at any time and for any or no. Additionally, you may terminate your AshevilleNow Member Profile account and end your use of AshevilleNow.com at any time and for no reason by contacting us.
AshevilleNow has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of AshevilleNow.com or any Social Network, (ii) remove and discard any Network Code, Member Profile, or Content within any Social Network or anywhere on AshevilleNow.com or (iii) shut down a Social Network, with or without notice, and with no liability of any kind to you.
If you terminate your account, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.
Effects of Terminating
Upon deactivating your account, this Agreement terminates and you will no longer have a right to access your account, Your Code or Your Content. AshevilleNow will not have any obligation to assist you in migrating your data, Your Content, Your Network Member Data, or Your Code off of AshevilleNow.com and AshevilleNow does not keep any back-up of any of Your Content or Your Network Member Data. AshevilleNow is not responsible for deleting Your Code, Network Code or Content on your behalf. Note that, even if Your Code, Network Code or Content is deleted from AshevilleNow's active servers, it may remain in our archives (but we have no obligation to archive or back-up Your Code or such Network Code or Content), and subject to the licenses set forth in this Agreement.
27. Governing Law; Venue
This Agreement shall be governed by the laws of the State of North Carolina without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Buncombe County, North Carolina for the purpose of litigating all such claims or disputes.
28. Relationship of the Parties
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that AshevilleNow has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
29. United States Export Controls
You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from AshevilleNow under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, AshevilleNow from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
30. No Third Party Beneficiaries
The parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
The failure of AshevilleNow to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You may not delegate your duties under this Agreement or assign this Agreement or your AshevilleNow accounts or AshevilleNow Profiles, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. AshevilleNow may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties' permitted assignees, transferees and successors.
The terms "including" and "includes" shall be deemed to be followed by the statement "without limitation" and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
AshevilleNow may provide you with notices, including those regarding changes to this Agreement or any of AshevilleNow's terms and conditions, by email, regular mail, or postings on AshevilleNow.com. Notice will be deemed given twenty-four (24) hours after email is sent, unless AshevilleNow has previously been notified that the email address is invalid. Notices not pertaining to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to AshevilleNow.com) are deemed given two (2) days following the initial posting.