WHOSMAD.COM
AGREEMENT ON TERMS AND CONDITIONS OF USE
PLEASE BE CERTAIN THAT YOU READ THESE TERMS AND CONDITIONS CAREFULLY AND FULLY UNDERSTAND THEM BEFORE USING THE WHOSMAD™ WEBSITE FOR ANY PURPOSE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE OUR WEBSITE OR AFFILIATED SERVICES. YOUR CLICKING ON THE BUTTON MARKED “I ACCEPT” BELOW, AND/OR YOUR CONTINUED USE OF OUR WEBSITE, INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THESE TERMS AND CONDITIONS.
By (1) using this site, and/or (2) entering into a transaction with WHOSMAD.COM LLC (“WHOSMAD™”) by means of using this site, and/or (3) downloading or using any content from this site, and/or (4) posting any material to this site, you agree to be bound by this Agreement on Terms and Conditions of Use (“Agreement”).
This Agreement applies to you (hereinafter “you” or “User”), and if you are using this website on behalf of any other party for which you are acting as an agent, it applies to you and to any such party for which you are acting. The management of WHOSMAD™ reserves the right to change this Agreement from time to time in its sole discretion, and your continued use of this website will indicate your agreement with the most current version posted on the site at the time of your use.
This site is owned and operated by WHOSMAD.COM LLC, a Florida limited liability company with its principal office in Hobe Sound Florida, USA. By using or visiting the WHOSMAD™ website in any manner, you agree that WHOSMAD.COM LLC is a “service provider” within the meaning of Title 17, United States Code, Section 512(k)(1).
If you do not wish to be bound by this Agreement, do not accept this Agreement, do not use this site, do not post any material to this site, do not enter into any transaction with WHOSMAD™ by means of this site, and do not download or use any content or material of any kind from this site. WHOSMAD™ and you are sometimes referred to hereinafter as “Party” or “Parties” to this Agreement.
1. PERMITTED USE OF THIS SITE
A. Our Content
The WHOSMAD™ website contains content owned by or licensed to WHOSMAD™ (“Content”). This Content is protected by copyright, trademark, patent, trade secret and other
laws, and WHOSMAD™ owns and/or enjoys and retains certain rights in the Content. WHOSMAD™ hereby grants you a limited, revocable, non-sub-licensable license to reproduce and display the Content solely for your personal use in connection with viewing and using the WHOSMAD™ website.
Excepting only those materials which you may post to this site (“Your Material”), as between you, the User, and WHOSMAD™, all Content contained on this site in any medium is owned by WHOSMAD™ and/or our Content providers (including, without limitation, other users of the WHOSMAD™ website). All such Content is protected by United States and international intellectual property laws Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the WHOSMAD™ website.
In addition to the foregoing Content, WHOSMAD™ may feature merchandise and designs for merchandise (“Merchandise”) on this site. The intellectual property rights in all such Merchandise are either owned by or licensed to WHOSMAD™, and such Merchandise may not be copied, reproduced or exploited without the express written permission of WHOSMAD™, which permission may be extended or withheld in the sole and absolute discretion of WHOSMAD™.
WHOSMAD™ grants you a limited, personal, nontransferable, non-sub-licensable, revocable license to access and use our site only as expressly permitted in this Agreement. Except for this limited license, we do not grant you any other rights or licenses with respect to the Content or Merchandise on this site, and any rights or licenses not expressly granted herein are reserved. Unless we have granted you permission in advance and in writing, you may use the site only for your personal, non-commercial use, and not to provide services to a third party. You may not remove any copyright or other proprietary notices contained in the Content or displayed in connection with Merchandise. WHOSMAD™ reserves the right to revoke your authorization to view, post Your Material to, or download and use the Content of this site at any time, and you agree immediately to discontinue such use upon written notice from WHOSMAD™. As between the User and WHOSMAD™, all rights not specifically granted to the User under this Agreement are reserved to WHOSMAD™.
You may download, display, or print one (1) copy of any portion of the Content. If you do so, you may not modify the Content in any way, and you must reproduce the WHOSMAD™ copyright notice (or the third-party provider’s notice, as applicable) in the form:
“© 2009 WHOSMAD.COM LLC -- All Rights Reserved”
as displayed on the relevant page(s) that you might copy.
Except as provided above, you may not:
-- Copy, reproduce, upload, post, display, republish, distribute or transmit any part of the Content in any form whatsoever;
-- Use a frame or border environment around the site, or other framing technique to enclose any portion or aspect of the site, or mirror or replicate any portion of the site;
-- Modify, translate into any language or computer language, or create derivative works from, any Content or any part of this site;
-- “Reverse-engineer” any part of this site; or
-- Sell, offer for sale, transfer, or license any portion of this site in any form to any third party.
You understand that, when using the WHOSMAD™ website, you will be exposed to Content supplied by other users of the WHOSMAD™ website, as well as Content from a variety of other sources, and that WHOSMAD™ is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is 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 WHOSMAD™ with respect thereto, and agree to indemnify and hold WHOSMAD™, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the WHOSMAD™ website.
B. Your Material
The law in many countries (including the United States) makes a clear distinction between statements of opinion (which are generally permissible regardless of their rightness or wrongness) and statements of fact (which can be considered defamatory and therefore subject to penalties if they are untrue or unproven). Though we allow wide latitude in expressing opinions on the WHOSMAD™ website, we can’t allow potentially defamatory statements to be made on our website, for both your protection and ours. For example, a claim that you “suffered a broken leg because of Mr. X’s negligence” is not a statement of opinion, but a statement of fact. So unless you are in possession of certified (a) medical and (b) legal proof that (a) your leg is really broken and (b) Mr. X was at fault because he was negligent, don’t post such a claim on the WHOSMAD™ website. Likewise, if you say, “I heard a rumor that Mr. X is a thief,” you may also be defaming Mr. X. It doesn't matter that someone else told you the rumor, because you’re the one spreading it. Before you spread a rumor, you have to ascertain its truth or likelihood. Otherwise you become responsible. You are free (in fact, we encourage you) to express opinions -- even very harsh ones -- about Mr. X or his products or services, but when it comes to factual statements we expect you to be careful to adhere to what you actually know is fact, not what you think or would like to think of as fact. WHOSMAD™ reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the WHOSMAD™ website at any time, for any or no reason, with or without prior notice or explanation, and without liability.
So please choose carefully the information and claims you post on or through the WHOSMAD™ website. Your postings may not include any form of Prohibited Content, as outlined in Section 2 below. Despite the prohibitions in that Section, though, information, materials, products or services provided by WHOSMAD™ users (including you) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and WHOSMAD™ assumes no responsibility or liability for this material. If you become aware of misuse of the
WHOSMAD™ website by any person, please click on the “Contact WHOSMAD™” or the “Report Abuse” link at the bottom of the WHOSMAD™ website pages. You are solely responsible for the Content that you post on or through the WHOSMAD™ website, and for any material or other information that you transmit to other users, as well as for your interactions with other users of the WHOSMAD™ website.
WHOSMAD™ does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or (without limitation) any other materials (collectively, “Your Material”) that you post on or through the WHOSMAD™ website. After posting Your Material to the WHOSMAD™ website, as between you and WHOSMAD™, you continue to retain any rights that you may have in Your Material, subject to the limited license which you grant to WHOSMAD™ in this Agreement. By posting Your Material on or through the WHOSMAD™ website, you hereby grant to WHOSMAD™ a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute Your Material on or through the WHOSMAD™ website or otherwise, including without limitation distributing part or all of Your Material in any and all media formats and through any and all media channels. You also hereby grant each other user of the WHOSMAD™ website a non-exclusive license to access Your Material through the WHOSMAD™ website, and to use, reproduce, distribute, display and perform Your Material as permitted through the functionality of the WHOSMAD™ website and under this Agreement. The license you grant is non-exclusive (meaning you are free to license Your Material to anyone else in addition to WHOSMAD™), fully-paid and royalty-free (meaning that WHOSMAD™ is not expected by you or required to pay for the use of Your Material on the WHOSMAD™ website), sub-licensable (so that Your Material may also be used by WHOSMAD™’s other users, its affiliates, subcontractors and other partners), and worldwide (because the Internet and the WHOSMAD™ website are global in reach). You represent and warrant that: (i) you own Your Material as posted by you on or through the WHOSMAD™ website; or you otherwise have the right to grant to WHOSMAD™ the license set forth above, and (ii) the posting of Your Material on or through the WHOSMAD™ website does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity and is not defamatory of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing to any person or entity by reason of Your Material posted on or through the WHOSMAD™ website.
You understand and agree that WHOSMAD™ may perform technical functions necessary to offer the WHOSMAD™ website and Your Material, including but not limited to transcoding and/or reformatting Your Material to allow its use on the WHOSMAD™ website. 2. PROHIBITED MATERIAL
You understand and agree that WHOSMAD™ may reject, refuse to post or delete any of Your Material for any or no reason, including without limitation those elements of Your Material that, in the sole judgment of WHOSMAD™, may violate this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Notwithstanding WHOSMAD™’s discretion in this regard, WHOSMAD™ assumes no responsibility for monitoring the WHOSMAD™ website for inappropriate material or conduct.
If at any time WHOSMAD™ chooses, in its sole discretion, so to monitor the WHOSMAD™ website, WHOSMAD™ nonetheless assumes (a) no responsibility for Your Material or material posted by other users, (b) no obligation to modify or remove any inappropriate material from whatever source, and (c) no responsibility for your conduct or the conduct of any other user.
You understand and agree that WHOSMAD™ does not endorse Your Material or the material submitted or posted by any other user of the WHOSMAD™ website; nor does it endorse or adopt any opinion, recommendation, or advice expressed therein, and WHOSMAD™ expressly disclaims any and all liability in connection with Your Material and material submitted or posted by any other such user.
n Some Examples Of Prohibited Material
The following are examples of the kinds of material that is illegal or prohibited to post on or through the WHOSMAD™ website. WHOSMAD™ reserves the right to investigate and take appropriate legal action against anyone who, in WHOSMAD™’s sole discretion, violates this provision, including without limitation removing the offending material from the WHOSMAD™ website and terminating such person’s access to the WHOSMAD™ website. Prohibited material which should not be posted as part of Your Material includes, but is not limited to, material that, in the sole discretion of WHOSMAD™: -- is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
-- harasses or advocates harassment of another person;
-- exploits a person or persons in a sexual or violent manner;
-- contains gratuitous nudity, excessive violence, or gratuitously offensive subject matter;
-- solicits personal information from anyone under 18;
-- publicly posts information that poses or creates a privacy or security risk to any person;
-- constitutes or promotes information that the posting party knows (or should know, in the exercise of reasonable care) is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
-- constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work;
-- involves the transmission of “junk mail,” “chain letters,” or constitutes unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
-- contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
-- furthers or promotes any criminal activity or enterprise; or provides instructional information about illegal activities;
-- solicits passwords or personal identifying information for commercial or unlawful purposes from other users of the WHOSMAD™ website;
-- involves commercial activities and/or sales without prior written consent from WHOSMAD™;
-- violates the rights of any person, including without limitation such person’s right to be free of defamatory statements. If you breach this Agreement and/or are responsible for any Prohibited Material being posted on the WHOSMAD™ website, you hereby acknowledge that you will have caused substantial harm
to WHOSMAD™, but that the amount of such harm would be extremely difficult to ascertain.
You are solely responsible for Your Material posted on or through the WHOSMAD™ website, any material or information that you transmit to other users, and for your interactions with other users. WHOSMAD™ does not permit copyright infringing activities and/or infringement of other intellectual or other property rights on our website, and WHOSMAD™ may remove all such material if properly notified that all or any element of Your Material or material submitted by other users infringes on anyone’s intellectual property or other rights. WHOSMAD™ reserves the right to remove Your Material or that posted by any other user, for any reason or no reason, without prior notice (See below).
[If you (i) are a copyright owner or an agent thereof and you believe that any material on the WHOSMAD™ website infringes upon your copyrights or other intellectual property rights, or (ii) believe that you have been defamed or that other rights you possess or have responsibility for may have been violated by any material on the WHOSMAD™ website, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Legal Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
§ A physical or electronic signature of a person authorized to act on behalf of the owner of a right that is allegedly infringed or violated;
§ Identification of the copyrighted work claimed to have been infringed or the statement(s) on the WHOSMAD™ website by which any other right of yours may have been violated;
§ Identification of the material that is claimed to be infringing or violative of another right and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit WHOSMAD™ to locate the material;
§ Information reasonably sufficient to permit WHOSMAD™ to contact you, such as an address, telephone number, and, if available, an electronic mail;
§ A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by a 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 a right that is allegedly infringed or violated.
WHOSMAD’s designated Legal Agent to receive notifications of claimed infringement is: Larry Thomas, email: legal@whosmad.com. For clarity, only DMCA or other legal notices should go to the Legal Agent; any other feedback, comments, requests for technical support, and other communications should be directed to WHOSMAD™ through Contact Us Page. You acknowledge that if you fail to comply with all of the requirements of the foregoing, your legal notice may not be valid.
B. Counter-Notice. If you believe that material that was removed (or to which access was disabled) is not infringing or violative of the rights of another, or that you have authorization, from the copyright owner or otherwise pursuant to the law, to post and use the material, you may send a counter-notice containing the following information to the Legal Agent:
§ Your physical or electronic signature;
§ 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;
§ 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
§ Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction and venue of the state and/or federal courts sitting in Miami-Dade County, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If such a counter-notice is received by WHOSMAD™’s Legal Agent, WHOSMAD™ may send a copy of the counter-notice to the original complaining party informing that party that WHOSMAD™ may re-insert the removed content or cease disabling it in 10 business days. Unless the complaining party files an action seeking a court order against WHOSMAD™ or one of WHOSMAD™’s users, the removed content may be re-inserted, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at WHOSMAD™’s sole discretion.]
3. WARRANTY AND INDEMNIFICATION
You represent and warrant to WHOSMAD™ that you will not post or transmit by means of our website any materials of any kind which (1) violate, plagiarize, or infringe on the intellectual property, contractual or other legal rights of any third party (including without limitation such parties’ rights to be free of defamatory statements about them); (2) are imported and/or exported in violation of any law, rule, or regulation of any jurisdiction with regard to such imports or exports; (3) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (4) contain software viruses or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You further represent and warrant to WHOSMAD™ that your use of the WHOSMAD™ website will at all times comply with all applicable laws, rules, and regulations and with this Agreement. You hereby agree to indemnify, defend and hold harmless WHOSMAD™ and its officers, employees, licensors, licensees, independent contractors, providers, subsidiaries and affiliates (collectively, the “Affiliates”), from and against any and all liability and costs incurred by the Affiliates in connection with any claim arising out of any breach or non-frivolous claim of breach by you of the foregoing representations, warranties and covenants, including, without limitation, attorney fees (transactional and/or litigation-related, at all stages thereof) and costs. You shall cooperate as fully as reasonably required in the defense of any claim. WHOSMAD™ reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the written consent of WHOSMAD™.
4. IN GENERAL
You understand that WHOSMAD™ may immediately terminate all agreements between us and may refrain from doing further business with you, without notice, if you fail to comply with any provision of this Agreement or with the specific terms and conditions applicable to Your Material or any other activity by you on the WHOSMAD™ website. If your account is terminated, you agree immediately (1) to stop using this site and any Content which you may have acquired, (2) to delete all such Content and all copies thereof from all media in your possession or control of whatever type (whether now known or hereafter developed, invented or devised), and (3) to destroy all other copies, or at WHOSMAD™’s request, return all such copies to WHOSMAD™. Your use of this site and any Content shall comply with all applicable law. WHOSMAD™ may restrict or remove your access to this site at any time, or restrict or remove the use of any Content for any reason, and may replace the Content with other content, and you agree immediately to discontinue all use of the Content upon notification from WHOSMAD™.
Despite our efforts to provide accurate information, the WHOSMAD™ website may contain technical or other mistakes, inaccuracies or typographical errors. As a convenience, our site may link to other sites that may be of interest to you but are not under WHOSMAD™’s control. These links do not imply endorsement by WHOSMAD™, and we are not responsible for the availability of or the content contained in any linked site. The WHOSMAD™ site may contain or use technology that provides WHOSMAD™ and its affiliates with information regarding your use of this site, or which permits WHOSMAD™ to audit your compliance with this Agreement via the use of software designed to track and identify use. Please consult WHOSMAD™’s Privacy Policy for further information on WHOSMAD™’s policies for use of your personal information.
n Children Under Thirteen (13) Not Permitted to Use this Site
Children under the age of thirteen (13) years are not permitted to use the WHOSMAD™ website for any purpose, and we ask that such children not access or use this site in any way. By using this website, you represent and warrant that you are over the age of thirteen (13) years.
n Minors Between Thirteen (13) and Seventeen (17) Years of Age
Minors (in most USA jurisdictions, persons under the age of 18) must obtain the approval of a parent or legal guardian to use the WHOSMAD™ website and are not eligible to use this site without the supervision and approval of a parent or legal guardian. We ask that such minors not submit any personal information to us without such approval. By using this site unsupervised, you warrant and represent that either (1) you are eighteen (18) years of age or older; or (2) that your parent or legal guardian has approved of such use.
n User Information
For purposes of identification, billing and marketing, you agree to provide WHOSMAD™ with accurate, complete, and updated information as requested by us, including your legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and Page 9 of 12
expiration date). You agree to notify WHOSMAD™ within ten (10) days of any changes in these elements of your information. You are solely responsible for maintaining the confidentiality of your own password(s) (if any), and you agree that WHOSMAD™ will have no obligations with regard thereto. WHOSMAD™ reserves the right to disclose any user data or other information in its possession regarding users of our services in cooperation with a duly authorized request or investigation by a governmental body or governmental agency, and you hereby agree to waive any claim you may have against WHOSMAD™ arising from the consequences of any such disclosure.
n No Expectation of Privacy
You acknowledge that transmissions made by means of this website are not confidential, and that your communications may be read or intercepted by others. You acknowledge that by engaging in posting or other activities with WHOSMAD™, no confidential, fiduciary, contractually implied or other relationship is created between you and WHOSMAD™, beyond that which is explicitly and specifically established by this Agreement between you and WHOSMAD™.
Any communications or materials you transmit to WHOSMAD™ through the website, by electronic mail or otherwise, including without limitation any data; question; comments; rating of an individual, business, property or attraction; suggestion; idea, or the like (“Communications”) will be treated as non-confidential and non-proprietary. By voluntarily submitting to us, or by posting on the site, any Communications, you grant to WHOSMAD™ and all users of the site a worldwide, non-exclusive, royalty free, perpetual, irrevocable, and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Communications in any form, media or technology. We assume no responsibility for any Communications posted or submitted, or for the return or such Communications. We want your feedback and appreciate your ideas and suggestions, but we are unable to answer every comment individually.
n Limitation of Liability
WHOSMAD™ ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGE TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THIS WEBSITE OR YOUR DOWNLOADING OR COPYING OF ANY CONTENT FROM THE WEBSITE. IN NO EVENT SHALL WHOSMAD™ OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (i) ANY USE OF THIS SITE OR CONTENT FOUND HEREIN, (ii) ANY FAILURE OR DELAY (INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS SITE), AND/OR (iii) THE PERFORMANCE OR NON-PERFORMANCE BY WHOSMAD™ OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF DAMAGES TO YOU OR ANY OTHER PARTY.
If, notwithstanding the foregoing, WHOSMAD™ and/or any third party provider or distributor should be found liable for any loss or damage which arises out of or is in any way connected with any of the above-described functions or uses of this site or its Content, the liability of WHOSMAD™ and/or the third party providers and distributors shall in no event exceed, in the aggregate, the greater of (a) the subscription fee and service charge (if any) for accessing this site, or (b) US $100.00. In its sole discretion, in addition to any other rights or remedies available to WHOSMAD™, and without any liability whatsoever, WHOSMAD™ at any time and without notice may terminate or restrict your access to any component of this website. Some states do not allow limitation of liability; so the foregoing limitation may not apply fully to you.
Subject to applicable law, use of this site and its contents is at your sole risk.
Your use of the WHOSMAD™ website is subject to our Privacy Policy . You agree that you have read our Privacy Policy, and that it is reasonable and acceptable to you. Your acceptance of this Agreement is also your consent to the information practices in our Privacy Policy.
WHOSMAD™ will use our reasonable commercial efforts to keep our site available on a 24-hour/7-day-a- week basis, subject to necessary scheduled downtime for maintenance, unscheduled maintenance, and system outages. We cannot promise that access to the site will be uninterrupted or available at all times. We assume no liability or responsibility for the consequences of any delay, interruption, or downtime.
n Viruses
We make reasonable attempts to exclude viruses from the WHOSMAD™ website, but cannot ensure that the site will at all times be free from viruses or other destructive software. You are urged to take appropriate safeguards before downloading and/or copying Content of any kind from this site. We assume no responsibility for any damages to computer equipment or other property that may result from use of the site or downloading and/or copying anything from the site.
n Electronic Notification
To the extent that WHOSMAD™ may need to contact you, you agree that we may do so via any electronic means, including but not limited to communications posted on the WHOSMAD™ website, electronic mail, telephone communication or instant messaging.
Miscellaneous
(a) This Agreement shall be construed, interpreted and enforced in accordance with, and shall be governed by, the laws of the State of Florida applicable to agreements entered into and to be wholly performed therein, and by applicable United States federal law. In the event of any conflict between any provisions hereof and any applicable laws to the contrary, the latter shall prevail, but this Agreement shall be deemed modified only to the extent necessary to remove such conflicts; and the surviving clauses hereof shall be interpreted so as fully as possible to effect the original intentions of the Parties. Only the courts (state and federal) sitting in Miami
Dade County, Florida will have jurisdiction of any controversies regarding this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts and not elsewhere, and the Parties hereby waive any objection either Party may otherwise have to the jurisdiction and venue of such courts, including without limitation objections raised on the basis of forum non conveniens. Any process in any such action or proceeding may, among other methods, be served by delivering it or mailing it, by registered or certified mail, directed to the address that the addressee has designated from time to time. Any such delivery or mail service shall be deemed to have the same force and effect as personal service within the State of Florida. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The Parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language (Les parties aux presentes confirment leur volonte que cette le convention de meme que tous les documents y compris y tout avis qui s’y rattache soient rediges en langue anglaise). In any dispute between WHOSMAD™ and you, WHOSMAD™ shall be entitled to recover its reasonable attorney fees, legal expert fees, and other legal expenses from you.
(b) This Agreement constitutes the entire agreement of the Parties hereto and supersedes all oral and written agreements and understandings made or entered into by the Parties hereto prior to the date hereof. Amendments, changes or modifications of this Agreement shall be valid as of the date such amendment, change or modification is posted on the WHOSMAD™ website, and your acceptance thereof shall be signified by any subsequent use of the WHOSMAD™ website by you in any manner. Any waiver by WHOSMAD™ of a failure to perform or of a breach shall not operate to waive any subsequent failure to perform or breach.
(c) The use of the singular in this Agreement shall apply to and mean the plural where appropriate. The use of the masculine or neuter pronoun in this Agreement shall apply to and mean the feminine where appropriate, and vice versa.
(d) The captions appearing at the commencement of the clauses hereof are descriptive only and for convenience in reference to this Agreement; and should there be any conflict between any such heading and the language of the clause at the head of which it appears, the language of the clause, and not such heading, shall control and govern in the construction of this Agreement.
(e) You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to WHOSMAD™ as will be irreparable, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that WHOSMAD™ shall be entitled as a matter of right to an injunction, issued by any court of competent jurisdiction, restraining such violation or attempted violation of this Agreement by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by WHOSMAD™ in obtaining such an injunction, including, without limitation, reasonable attorney fees for transactional legal work and at all levels of litigation. You agree that no bond or other security shall be required in connection with WHOSMAD™’s application for any such injunction.
(g) The Parties acknowledge that each has been advised by counsel, and/or been given the opportunity and recommendation to be advised by counsel, during the course of negotiation of this Agreement. This Agreement shall be interpreted without regard to any presumption or rule requiring construction against the Party causing this Agreement to be drafted.
You may preserve this Agreement in hard-copy form by printing it for your records, and you waive any other requirement that this Agreement be evidenced by a written document.