TERMS OF SERVICE
1. Your Acceptance
A. These terms of service (“Terms of Service”) are a binding legal agreement between you and Despair, Inc. (“Despair”), regarding your use of the despair.com website, diy.despair.com website [insert web addresses], and any products or services available from the websites (collectively, the “Websites”). Please read these Terms of Service carefully. By accessing or using the Websites, you signify your agreement to (1) these Terms of Service, and (2) the Community Guidelines incorporated here by reference. If you do not agree to any of these terms or the Community Guidelines, please do not use the Websites.
B. Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version of the Terms of Service. Despair, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2. The Websites
A. These Terms of Service apply to all users of the Websites, including users who are also contributors of picture content, information, and other materials or services on the Websites.
B. The Websites may contain links to third party websites that are not owned or controlled by Despair. Despair has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Despair will not and cannot censor or edit the content of any third-party site. By using the Websites, you expressly relieve Despair from any and all liability arising from your use of any third-party website.
3. Despair Accounts
In order to access some features of the Website, you will have to create a Despair account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Despair immediately of any breach of security or unauthorized use of your account.
Although Despair will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use.
4. General Use of the Websites — Permissions and Restrictions
Despair hereby grants you revocable, non-transferable, and non-exclusive permission to access and use the Websites as set forth in these Terms of Service, provided that:
A. You agree not to distribute in any medium any part of the Websites, including but not limited to Content and User Submissions (each as defined below), without Despair’ prior written authorization.
B. You agree not to alter or modify any part of the Websites, including but not limited to Despair’s technologies.
C. You agree not to access User Submissions (defined below) or Content through any technology or means other than any explicitly authorized means designated by Despair.
D. You agree not to use the Websites for any commercial use, without the prior written authorization of Despair. Prohibited commercial uses include any of the following actions taken without Despair’ express approval:
1) Sale of access to the Websites or Content or services on another website;
2) Use of the Websites or Content or services for the purpose of gaining advertising or subscription revenue;
3) The sale of advertising, on the Websites or any third-party website, targeted to the content of specific User Submissions or the Websites’ Content;
4) Any use of the Websites or its Content or services that Despair finds, in its sole discretion, to use its resources or User Submissions with the effect of competing with or displacing the market for the Websites, its Content, or its User Submissions.
E. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Websites in a manner that sends more request messages to the Despair servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Despair grants the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Despair reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information from the Websites, nor to use the communication systems provided by the Websites for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Websites with respect to their User Submissions.
F. You will otherwise comply with the terms and conditions of these Terms of Service, Community Guidelines, and all applicable local, national, and international laws and regulations.
G. Despair reserves the right to discontinue any aspect of the Websites at any time.
5. Your Use of Content on the Website: In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content on the Websites.
A. The content on the Websites, except all User Submissions, including without limitation, the text, software, scripts, graphics, photos, sounds, music, pictures, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Despair, subject to copyright and other intellectual property rights under the law. Content on the Websites is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Despair reserves all rights not expressly granted in and to the Websites and the Content.
B. You may access User Submissions solely:
For your information and personal use in accordance with these Terms of Service; and
As intended through the normal functionality of the Websites.
C. User Comments (as defined below) are made available to you for your information and personal use solely as intended through the normal functionality of the Websites. User Comments are made available “as is”, and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the Website or otherwise as expressly authorized under this Agreement.
D. You may access Content, User Submissions and other content only as permitted under this Agreement. Despair reserves all rights not expressly granted in and to the Content and the Websites.
E. You agree to not engage in the use, copying, reproduction, transmission, broadcast, selling, licensing, downloading, or otherwise exploiting any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Websites for any commercial purposes.
F. You agree not to circumvent, disable or otherwise interfere with security-related features of the Websites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites or the Content therein.
G. You understand that when using the Websites, you will be exposed to User Submissions from a variety of sources, and that Despair is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Despair with respect thereto, and agree to indemnify and hold Despair, its owners, operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Websites.
6. Your User Submissions and Conduct
A. You may submit picture content (“User Pictures”) and textual content (“User Comments”) to Despair. User Pictures and User Comments are collectively referred to as “User Submissions”. You understand that whether or not such User Submissions are published, Despair does not guarantee any confidentiality with respect to any User Submissions.
B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have all the necessary licenses, rights, consents, and permissions to use and authorize Despair to use all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Websites and these Terms of Service.
C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Despair, you hereby grant Despair a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions, including without limitation for promoting and redistributing part or all of the Websites (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Website a non-exclusive license to access your User Submissions through the Websites, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Websites and under these Terms of Service.
D. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Despair all of the license rights granted herein.
E. You agree that your conduct on the Website will comport with the Community Guidelines which may be updated from time to time.
F. Despair does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Despair expressly disclaims any and all liability in connection with User Submissions. Despair does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Despair will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. Despair reserves the right to remove Content and User Submissions without prior notice.
G. If you provide feedback to us regarding the Websites, Content, or User Submissions (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.
7. Termination Policy
A. You may terminate your use of the Website at any time. Despair may suspend or terminate your access to the Websites or terminate these Terms of Service, at any time, for any reason. If Despair suspects that you have violated any provision of these Terms of Service, Despair may also seek any other available legal remedy. Your rights under these Terms of Service will terminate automatically if you breach any part of these Terms of Service. You remain solely liable for all obligations related to use of the Websites, even after you have stopped using the Websites.
B. Despair reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, obscene or defamatory material. Despair may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
8. Copyright Infringement
A. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3) Identification of the 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 the service provider to locate the material;
4) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
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.
Despair’ designated Copyright Agent to receive notifications of claimed infringement is:
Attention: Dr. E. L. Kersten, Copyright Agent, Despair, Inc. 800 Interchange, Ste 102, Austin, TX 78721
You acknowledge that if you fail to comply with all of the requirements of this Section 8(A) your DMCA notice may not be valid.
B. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature;
1) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
2) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
3) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Seattle, Washington and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Despair may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Despair’ sole discretion.
C. Repeat Infringers. Despair will terminate the access privileges of any user who repeatedly infringes the copyright rights of others.
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE WEBSITES SHALL BE AT YOUR SOLE RISK. THE WEBSITE, CONTENT, AND USER SUBMISSIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND DESPAIR, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITES AND YOUR USE THEREOF. DESPAIR MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITES’ CONTENT OR THE CONTENT OF ANY SITES LINKED TO THESE WEBSITES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITES. DESPAIR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND DESPAIR WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10. Limitation of Liability
IN NO EVENT SHALL DESPAIR, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM RESULTING FROM YOUR ACCESS OR USE OF THE WEBSITES, CONTENT, OR USER SUBMISSIONS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF DESPAIR, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS TO YOU FOR ANY CLAIM UNDER THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS $25. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The Websites are controlled and offered by Despair from its facilities in the United States of America. Despair makes no representations that the Websites are appropriate or available for use in other locations. Those who access or use the Websites from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Despair, its managers, members, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Websites; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party rights, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Websites.
13. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Websites are not intended for children under 13. If you are under 13 years of age, then please do not use the Websites. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Despair without restriction.
By using the Websites, you consent to receiving electronic communications from Despair. These communications will include notices about your account and information concerning or related to the Websites. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. These Terms of Service shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles. Any claim or dispute between you and Despair that arises in whole or in part from the Websites shall be settled exclusively by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Austin, Texas, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Texas law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. These Terms of Service, together with any other legal notices published by Despair on the Websites, shall constitute the entire agreement between you and Despair concerning the Websites. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Despair’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Despair reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Websites following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND DESPAIR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16. Contacting Despair
If you have any questions or concerns about these Terms of Service or the Websites, please send us a thorough description by email to firstname.lastname@example.org.