Tommy Naples Music Website Terms and Conditions

TERMS AND CONDITIONS

Last Updated: 10/2/2008

Tommy Naples Music, LLC (the “Company”), offers the Use (as defined below) of www.tommynaplesmusic.com (“Website”), subject to the following terms and conditions (“Terms and Conditions”).  The viewer or user (collectively, the “User”) should read these Terms and Conditions carefully before using the Website.  By continuing to view and use the Website, the User agrees to these Terms and Conditions.  Furthermore, by becoming a Registered User (as defined below), these Terms and Conditions are further affirmed.  If the User does not agree to the Terms and Conditions set forth herein or otherwise on the Website, the User must not use it.  The Company retains the right to change the content of the Website or these Terms and Conditions at any time.  Any changes made to these Terms and Conditions shall be effective immediately upon posting.  The User’s continued Use of the Website constitutes acceptance of those changes.

Further, the User hereby agrees that his utilization of any product or service of the Company, including, without limitation, the purchase of any CD, digital downloads and/or other merchandise (collectively referred to herein as the “Products”), shall also be subject to these Terms and Conditions, as applicable, whether or not the sale is made through the Website.

The situating of the Website on the World Wide Web and/or Internet constitutes a continuing offer by the Company to the User to Use, as such term is defined below, the Website according to the Terms and Conditions.  By utilizing the Website in any manner, including, without limitation, by viewing the same (collectively, a “Use”), the User accepts that offer and creates a binding contract between the two parties to adhere to the same.  The parties stipulate that sufficient consideration exists to create that contract, and that it is therefore binding upon them.  Further, by his Use of the Website, the User makes the material representation upon which he wishes the Company to reasonably rely that he will adhere to the Terms and Conditions in connection with the User’s Use of the Website.    If the User is dissatisfied with any of the Terms and Conditions, the User’s sole and exclusive remedy is to discontinue using the Website.  Finally, by his Use of the Website, the User also stipulates that a violation of any of the Terms and Conditions will result in irreparable harm to the Company not compensable in money damages, such that, without limitation, injunctive relief shall be a necessary and appropriate remedy.

The Website contains images and contents, including but not limited to images, photographs, website text, software, pictures, graphics, video clips, audio clips, digital downloads, data, messages or any and all other information controlled by the Website (collectively, “Materials”).  

General Disclaimer.  Nothing contained on the Website shall be construed as a representation to be reasonably relied upon.  In no event shall anything on the Website be construed either to create a duty of care or to constitute a representation by the Company of any sort to be relied upon by the User in any manner whatsoever.  The Company takes no responsibility for information sent to it that is intercepted by third-parties.  

As further set forth herein, the Company takes no responsibility for the information contained on any website to which this one may be linked, as the same is completely independent of the Website.  Furthermore, the Company takes no responsibility for any communications between Users or posted by any User.  User acknowledges and agrees that his participation in and on the Website is at his own risk.  User acknowledges that the Company in its operation of the Website is simply serving as a passive conduit and does not control the quality, safety or legality of any interactions between Users of the Website, or any information posted by third parties on the Website, nor does it endeavor to determine the truth or accuracy of any messages posted by third parties or any other information.  Accordingly, User acknowledges and agrees that the Company shall be entitled to the immunities afforded to an Interactive Computer Service under the Communications Decency Act, 47 USC § 230, as it may be amended.

The Company is not responsible for the User’s Use of the Website.  User shall use caution and be responsible for the inherent risks in dealing with other Users or third-parties, whose identities have not been verified or who may be under age, acting under false pretenses or attempting to defraud others.  User agrees to accept and assume such risks and acknowledges that the Company is not responsible for the acts or omissions of Users or third-parties on the Website.

Moreover, this Website utilizes an independent, third party service provider, such as PAYPAL, for the processing of payments, as is made available through the Website (“Payment Processor”).  The User will be responsible for reviewing the terms and conditions of any agreement with the Payment Processor, which may include the way the Payment Processor collects information, the manner in which they process payments and the duties and obligations that the User has with the Payment Processor.

If the User believes that he has been mistakenly billed, the User has the duty and obligation to notify the Payment Processor immediately of such error.  The User must review the Payment Processor’s policy with regard to their notice requirements.  The User releases this Website and the Company from all liabilities and claims of loss resulting from any error or discrepancy in billing. Without limitation, User acknowledges and agrees that Company has no obligation in regard to a dispute between the User and the Payment Processor, and Company need not intercede in any such transaction on a User’s behalf.  Moreover, User specifically releases and waives any claim against the Company arising out of or otherwise related (whether directly or indirectly) to a dispute between User and the Payment Processor.

User acknowledges and agrees that none of the Users or their profiles are by or for the Company, with the sole exception of profiles that are created by the Company during the beta testing period.  Rather, all such Users are independent, separate individuals or entities.  Accordingly, User acknowledges and agrees that Company shall bear no liability, and User accordingly releases Company from any and all liability, and potential claims that could arise from User’s dealings with any other Users or other third parties.

Content.  The Company takes no responsibility for the communications or information contained in any posts or forum where Users or third-parties may submit the same on the Website (collectively, “Third Party Content”).  The views expressed in any Third Party Content are merely those of the poster, and do not necessarily reflect the views of the Company or any person or entity affiliated with the Company.  The Company has no obligation to screen in advance, nor is the Company responsible for screening or monitoring Third Party Content.   Furthermore, the Company does not endorse any opinions or views expressed in the Third Party Content. The Company may, but undertakes no duty to, review, delete, re-arrange or restrict access to any Third Party Content or other content submitted to the Company for any reason, in its sole discretion.  The Company may, but shall be under no obligation to, expel Users and prevent their further access to the Website for violating the Terms and Conditions, applicable law, rule or regulation, or for conduct that is abusive, illegal or disruptive, or otherwise poses a potential liability for the Company.  Without limitation, the Company may cancel Registered Users’ User Accounts (as defined herein) and/or other access to the Website at any time, for any or no reason.

Registered User Account.  Certain Users may elect to create an account with the Website, whereby they become registered users (“Registered Users”).  A Registered User may provide the Company with certain information including, without limitation: name, username, email and password (collectively, the “User Account”).  Each Registered User is responsible for maintaining the confidentiality of the User Account information. A Registered User shall be responsible for all uses of the User Account on the Website, whether or not authorized by the Registered User.  Notwithstanding the foregoing, the Registered User shall immediately notify the Company of any unauthorized use of a User Account.  Moreover, if any User who is not a Registered User learns of any unauthorized use of a User Account, such User shall immediately notify the Company thereof.  A Registered User may cancel his User Account by sending an email to tsmead@comcast.net.  That email shall have in its subject line “Request to Terminate User Account.” Notwithstanding the foregoing, and as previously set forth, Company may cancel a User Account at any time, and without prior notice to the Registered User.  All references herein to Users shall incorporate those Users that are Registered Users, unless specifically stated otherwise.

As further set forth in the Privacy Policy, information that Registered Users include in their User Account may be accessible to other Users and to the public.  Accordingly, Registered Users should be careful to not include in the User Account any information that is personal or otherwise of a nature that they do not wish to be public.  Without limitation, telephone numbers, street addresses, last names and photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter should not be included in the User Account or otherwise submitted to the Website.  Notwithstanding the foregoing, and despite any efforts that the Company may elect to undertake regarding the inclusion of the forgoing materials, Users acknowledge and agree that the Website may nevertheless contain inaccurate, inappropriate, offensive or sexually explicit material, products or services.  The Company assumes no responsibility for those materials, and User acknowledges and agrees that it is undertaking the risk of being exposed to the same by utilizing the Website.  In the event that the User becomes aware of any such inappropriate content being posted on the Website, it shall immediately notify Company of the same, by providing an email to tsmead@comcast.net with a subject line entitled “Inappropriate Content.”

Submission of Recordings.  Certain Registered Users may elect to submit a recording directly to the Company via the Website (“Recording”), for consideration by the Company to potentially sign such Registered User to a recording agreement as one of Company’s artists.  Any Registered User who submits a Recording via the Website makes the material representation and warranty, upon which he seeks Company to reasonably rely, that (i) the Recording contains only original creations, (ii) the Registered User owns one hundred percent (100%) of all rights to the Recording (including all copyrights in the sound recording and musical composition contained there), (iii) the Recording does not contain any third party copyrighted materials, without appropriate clearances and licenses, including without limitation samples of the work of any third party, and otherwise does not violate or infringe the rights, including without limitation copyrights, trademark rights or rights of publicity or privacy, of any third party, and (iv) no additional permissions relating to the copyright or any other rights associated with the Recording are necessary or required. 

Any Registered User who submits a Recording to the Company via the Website shall retain all rights in and to such recording unless and until such time as an agreement is entered into between that Registered User and the Company which provides otherwise.  Notwithstanding the foregoing, all Registered Users acknowledge and agree that Company has no obligation to execute any recording or other agreement with such Registered User or to produce, publish, manufacture, distribute, sell or otherwise do any act in connection with the recording(s) submitted via the Website.  Further, any Registered User who submits a recording via the Website acknowledges and agrees that Company will not be required to make any payment, monetary or otherwise, to the Registered User in exchange for the submission of such recording or Company’s consideration of the same. 

Each Registered User who submits a Recording to the Company via the Website acknowledges and agrees that other persons, including without limitation Company artists, may have submitted to Company or to others or otherwise made public, or may hereafter originate or submit to make public, similar or identical material to the Recording(s) submitted by the Registered User.  In such event, Registered User acknowledges and agrees that Company shall have the right to use such similar or identical material and that the Registered Users will not be entitled to any royalty or other compensation for Company’s use of the same.

Company may dispose of the Recording as it wishes, and need not undertake special precaution to protect the Recording.  In this regard, Registered User acknowledges and agrees that Company shall in no way be liable for any claims or damages that arise from the Company’s disposal or destruction of the Recording.  Registered User hereby waives and releases any damages or claims that he may have against Company or any of the Company Parties (as defined below) relating to the disposal of the Recording. 

Access to Website - Limited License.  The Website and the content provided therein, including without limitation, the Materials and other text, graphics, button icons, audio clips, video clips, digital downloads, photographs, biographical information, data compilations and software, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of the Company.  Notwithstanding the foregoing, the Company grants the User a limited non-exclusive license to make personal, non-commercial use of the Website and not to download (other than page caching) or modify any portion of the Website without the Company’s prior written approval.  Notwithstanding the foregoing, the User is also granted a limited license to (i) download any Materials intentionally made available for downloading from the Website in accordance with the conditions set forth herein for the same, for his personal, non-commercial use; and/or (ii) print copies of any Materials posted on the Website, but only for the User’s personal, non-commercial use.  Without limitation, the above-license shall not entitle any person or entity to use or download any portion of the Website for competitive uses, or without providing appropriate payment, where one is charged.  The User acknowledges and agrees that he will not copy or distribute any portion of the Website to any other person or entity.  Except as expressly provided, all rights are reserved.  The Company may terminate this license at any time by amendment of these Terms and Conditions. 

Moreover, and notwithstanding the foregoing, if User exercises his rights under the above-referenced license, he must retain all copyright and trademark notices, including any other proprietary notices, contained in the Materials.  User shall not, under any circumstances, alter, obscure or obliterate any of such notices. The use of such Materials or any portion of the Website on any other website or in any environment of networked computers is strictly prohibited without the Company’s advance written consent, which may be withheld in Company’s sole discretion.

User Conduct.  By utilizing the Website, the User makes the material representation upon which the User wishes the Company to reasonably rely, that he will comply with the code of conduct set forth below:

The User, when utilizing the Website, will not do so in an unauthorized manner, or in a manner which violates any legal or regulatory proscription or duty, including, without limitation, violating the Company’s intellectual property or that of another;

The User will not utilize the Website in a manner that is harmful to the Company or any other person or entity;

The User, through the Website, will not harass or advocate the harassment of any other person;

The User will not utilize the Website to exploit people in a sexual and/or violent manner;

The User will not utilize any information that the User gained as a result of using the Website to illegally or improperly violate another person’s or entity’s privacy rights. 

The User shall not utilize the Website to post any information that would create a privacy or security risk to any person, including without limitation posting a person’s address, telephone number, photograph, social security number or credit card number(s);

The User shall not upload, provide links to or otherwise provide any content or information that is infringing, defamatory, obscene, pornographic, threatening, abusive, illegal or otherwise improper or objectionable;

The User shall not utilize any of the Company’s trademarks as metatags on other websites or otherwise use the Company’s trademarks for User’s own advertising or pecuniary gain, including without limitation utilization as Google® AdWords;

The User shall not utilize the Website in regard to any commercial activities, advertising or sales without the prior written consent of the Company, which may be unreasonably withheld;

The User shall not use any robot, spider or other intelligent agent software or device to access or monitor the Website in any manner;

The User shall not access the Website more than ten (10) times a day;

The User will not restrict any other user from properly using the Website, including without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Website and its underlying programs;

The User will not imply that any of his statements are endorsed by the Company, or that User is otherwise associated with the Company in any manner;

The User shall not buy, sell, share or otherwise disseminate any other User’s username, password or other personal information;

The User shall not forge headers or otherwise manipulate web pages or other aspects of the Website in a manner so as to try to disguise Third Party Content;

The User will not use the Website if the User is not able to form legally binding contracts, is under the age of thirteen (13), or has been temporarily or indefinitely suspended from the Website;

The User will not transmit any material, non-public information about any person or entity without the proper authorization to do so;

The User will not transmit any advertisements, solicitations or any  unsolicited communication without the Company’s express permission to do so;

The User will not cover or obscure any advertisements located within the Website;

The User will not post to the Website any incomplete, false or inaccurate information or information which does not belong to the User;

The User will not revise, modify, reverse engineer or in any way alter any portion of the Website or its contents or underlying technology;

The User will not “frame” or “mirror” any part of the Website;

The User will not utilize any device to enable him to circumvent the structure of the Website and/or spam or flood the site;

The User will not collect any information about other users to the Website without the Company’s express permission to do so;

The User will not sell or otherwise transfer his User Account;

The User shall not impersonate any other person and/or falsely state or otherwise misrepresent that he has an affiliation with any other person or entity, or otherwise mislead, deceive or defraud the Company, another User or any other party; and

The User will not create a database utilizing any information found within the Website.

The User will not record any streaming audio or video located on the Website.

Sales.    The product and pricing information contained on the website is subject to change at the Company’s sole discretion.  The listing of Products for sale, and applicable pricing is subject to availability. The Company will not knowingly accept any order from a person under 13 years of age. 

The User hereby makes the material representation upon which it wishes the Company to rely that: (i) he is at least 13 years of age; (ii) he is a resident of the United States (iii) he is authorized to make a purchase; and (iv) he is bound to that sale and the Company’s applicable cancellation policies, if any.  Further, User covenants and agrees to: (v) provide certain information to the Company with regard to the mailing address and billing address, including, without limitation, personally identifiable information; (vi) accurately and fully provide any such information; and (vii) provide payment in good and sufficient funds.  Verification as to the accuracy of the information provided may be required prior to The Company’s acceptance of any such purchase order.  The User acknowledges that submission of a purchase order does not, in and of itself, entitle User to the Products.  The User acknowledges that purchase of the Company’s Products and services may be subject to additional terms and conditions set forth by the company.

Pricing. All prices displayed on the Website are exclusive of tax and shipping, are quoted in U.S. Dollars, are valid and effective only in the United States and are subject to change. Any prices listed herein shall be solely for purchases made through the Website. Inadvertent errors in advertised prices are not binding on the Company and may be adjusted by the Company at any time in Company’s sole discretion. Additionally, prices may vary in stores and/or when sold through other sources.  Neither the Website nor the Company offers any price adjustments based on different sale prices on products offered through different sale modalities.  Moreover, any sales tax on products purchased shall be collected through the Payment Processor as necessary.

Product Specifications / Availability.  The Company hereby reserves the right to change and/or discontinue product specifications and prices without prior notice. Products are only available while supplies last.

Order Acceptance / Confirmation.  User expressly acknowledges and agrees that receipt of an electronic order form, or other form of order does not signify Company’s acceptance of an order, nor does it constitute confirmation of Company’s offer to sell to User.  The Company reserves the right at any time after receipt of User’s order to accept or decline the order for any or no reason, in its sole discretion.  

Shipping. User shall be charged for all shipping costs in connection with User’s order. All orders placed through use of the Website are subject to product availability and will be shipped according to the Company’s shipping policies.  All shipments of orders are FOB Company’s offices in Ocean View, New Jersey.

In the event that a User’s order does not arrive, User must notify the Company, in writing, of non-delivery within sixty (60) days of User’s receipt of the shipping confirmation email. Failure to provide written notice within that time shall waive any and all claims, including without limitation, claims for any reimbursement of shipping costs and purchase price. 

Refunds and Returns.     All sales made through this Website are final.  Cancellations, exchanges, refunds and returns are not permitted and will not be accepted for any reason whatsoever.  

Abuse of the Website.  If, in the Company’s sole discretion, it determines that a User is creating potential liabilities, or acting inconsistently with these Terms and Conditions, the Company may, without limitation, limit, suspend or terminate the Registered User’s User Account, prohibit access to the Website, remove hosted User Content (as defined below), and take technical and legal steps to keep User off the Website.  User otherwise acknowledges and agrees that this is in the Company’s sole discretion and that it shall not be obligated to do so. Company reserves the right to investigate and take appropriate legal action against any violation of these Terms and Conditions.  All Users agree to cooperate in this investigation regardless of whether it is related to User Content posted by him or relating to another, unrelated User.  Notwithstanding the foregoing, User acknowledges and agrees that Company can terminate User’s right to Use this Website or any portion thereof at will, without notice and without cause. 

The User hereby makes the material representation upon which he wishes the Company to reasonably rely that: (i) he is at least 13 years of age; (ii) he is a resident of the United States (iii) he is authorized to register with the Website and/or provide information to the Website; and; and (iv) he is bound to that registration and Company’s applicable cancellation policies, if any.

Copyrights; Restrictions On Use.  The Materials on the Website are copyrighted by the Company, its affiliates or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by the Company, its affiliates or its licensors.  The Materials may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of the Company and its applicable licensors, with the sole exception that User may download any Materials intentionally made available for downloading and/or print copies of the Materials, so long as it is for User’s personal, noncommercial use. User must abide by all copyright notices, information or restrictions contained in or attached to any Material. User agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Website, including, without limitation, any of the Materials or access to the Website, except as it directly relates to the User Content. 

Further, images of people or places displayed on the Website and on or within the Products sold on the Website are either the property of, or used with permission by, the Company. The use of these images by User, or anyone else authorized by the User, is strictly prohibited. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.  Notwithstanding the foregoing, Company does not claim any ownership rights in the text, images, photos or other materials (“User Content”) that are posted by Users.  Rather, all such rights shall be retained by the User.  However, by submitting suggestions, ideas, comments or questions, or displaying, posting or publishing any User Content on the Website, User is expressly granting the Company a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and fully sublicensable, limited license to modify, use, adapt, translate, create derivative works from, publicly perform, publicly display, republish, reproduce and distribute the User Content in any form, media or technology.  Moreover, as otherwise set forth herein, User represents and warrants that it has all right and title in and to the User Content, and that no aspect of the User Content, or the posting thereof, shall violate the rights of any third party.  This shall include, without limitation, copyrights, contract rights, trademark rights, rights of privacy, rights of publicity or any other rights of any third party.  Without limitation, Company takes no responsibility and assumes no liability for any User Content.

Copyright Infringement.  It is the policy of the Company to respond expeditiously to claims of copyright infringement.  The Company will promptly process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act and other applicable intellectual property laws.  The Company may elect to terminate access for any User who it believes in its sole discretion to be an infringer, regardless of whether proven or not.

User covenants and agrees to provide the Company with any information that User has regarding potential copyright infringement of any of the Materials. The sole and exclusive protocol for notifying Company that its copyrighted work has been infringed upon is to provide written notice to Company in accordance with the Notices provision hereunder.  That notice must include (i) the signature of a person authorized to act on behalf of the owner of the copyright interest (“Copyright Owner”); (ii) a description of the copyrighted work that is believed to have been infringed upon; (iii) a description of where the alleged infringing work is located on the Website; (iv) the Copyright Owner’s mailing address, telephone number and email address; (v) a statement by the Copyright Owner that it has a good-faith belief that the disputed use is not authorized by the Copyright Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the work; and (vi) a statement by the Copyright Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Copyright Owner or is authorized to act on the Copyright Owner's behalf.  Such information should be immediately delivered to the Company by certified mail return receipt requested or by commercial carrier at the addresses set forth below in the “Notices” provision and directed to the attention of the “Copyright Agent.”

Trademarks.  “Tommy Naples Music, LLC” and variations thereof, as well as certain other of the names, logos and materials displayed on the Website constitute trademarks, tradenames, service marks or logos ("Marks") of the Company or other related entities.  User is not authorized to use any such Marks or any variations thereof.  Ownership of all such Marks and the goodwill associated therewith remains with the Company or other related entities.

Communications.  Any communications, including, without limitation, emails, pictures, audio clips, videos, graphics and/or other material sent directly, or by carbon copy or otherwise to the Company or any of its officers, employees or agents and any postings to the Website shall become the Company’s property upon the transmission of the same.  User grants the perpetual and irrevocable right to both publicly or non-publicly utilize the same, including the identifying information contained therein, in any manner whatsoever, at no charge.

Notices.  All notices or other communications to the Company, if any, that are to be given under these Terms and Conditions must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier.  Notices to the Company shall be deemed given only upon receipt.  Notices to the Company may also be given by electronic mail, provided that it is followed by an exact copy by either regular mail, personal delivery, certified mail, return receipt requested or two-day mail or overnight mail by a commercial carrier to the same addresses set forth above.  Such notice shall be deemed effective twenty four (24) hours after the message was sent, if no “system error” message or other notice of non-delivery is generated.  Notices to the Company shall be addressed as set forth below unless it changes the address in writing by updating these Terms and Conditions.  The address for giving notice to the Company is as follows:

Tommy Naples Music, LLC
15 Nadine Boulevard
Ocean View, New Jersey 08230
tsmead@comcast.net
Fax:                  

Notices to User shall be provided by the Company via email or any other address which the Company reasonably believes to be associated with the User.  Notice shall be deemed effective upon delivery of the same by the Company.

California Residents.  Pursuant to California Civil Code Section 1789.3, California residents are hereby advised of the following: (a) Tommy Naples Music, LLC is located at 15 Nadine Boulevard, Ocean View, New Jersey 08230 and can be reached via telephone at 609-390-0868; (b) Registered Users of the Website are notified in advance of any applicable charges resulting from or related to their use of the Website or its services; (c) consumers may contact Tommy Naples Music, LLC at the address or telephone number indicated above to resolve a complaint or receive further information regarding any aspect of the services provided by the Website; and (d) the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N 112, Sacramento, California 95834 or via telephone at 800-952-5210.

Indemnification.  The User agrees to indemnify, hold harmless and defend the Company, its affiliates, and any members, directors, officers, employees or agents (collectively, “Company Parties”) of any of the foregoing with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of Company’s selected attorneys, arising from any third-party claim relating to (i) User’s infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by the User to comply with these Terms and Conditions, specifically including the “User Conduct” as set forth above; (iii) the User’s Use of the Website; (iv) User’s defamation, libel, slander or other tortious act against a third party; (v) a breach of any guarantees, covenants and/or warranties provided by one User to another User; and/or (vi) any act or omission or willful misconduct on the part of the User that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties.

Attorneys’ Fees.  If Company or any of the Company Parties undertake any action to enforce these Terms and Conditions, such party will be entitled to recover from the User, and User hereby agrees to pay, any and all attorneys’ fees and any cost of litigation, in addition to any other relief at law or in equity to which such party may be entitled.  In such event, the Company shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.

Member Disputes.  User is solely responsible for his interactions with other Users.  Company reserves the right, but shall have no obligation, to monitor or otherwise involve itself in any disputes among Users.

Privacy.  Please refer to the Company’s Privacy Policy.  The User is bound to the terms contained therein.

Protection of Children.  No one under the age of thirteen (13) is permitted to Use the Website without the involvement of a parent or guardian.  If the User is a parent and believes the Company may have inadvertently collected such information from User’s child, please notify the Company immediately by sending an email to tsmead@comcast.net.  Moreover, Users should be aware of the fact that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist the User in limiting access to material that it considers to be harmful to minors.  For convenience sake only, examples of some such protections are listed below.  However, as otherwise set forth herein, the Company does not accept any liability for the products and services provided by any third parties.  Nor does the following listing constitute, in any way, an endorsement of these products by the Company.  Rather, it is being provided only as an example and for the User’s convenience. 

Net Nanny – available at http://www.netnanny.com

SafeEyes – available at http://www.internetsafety.com/safe-eyes

Crawler Parental Control – available at http://www.crawlerparental.com

Cookies.  The Company specifically acknowledges and hereby notifies User that it may utilize “cookies” in connection with the operation of the Website.  The User agrees that such cookies may be placed on his computer, in connection with his access to, and use of, the Website.  Nevertheless, the User should note that he can likely make adjustments to his web browser which may enable it to control the use of cookies.  Such action, however, could affect the User’s Use of the Website.

DISCLAIMER.  User explicitly agrees that Use of the Website or any of the Materials contained herein is at his own and sole risk. The Website and all Materials contained therein are provided "as is" without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement.  Neither the Website nor the Company makes any representations or warranties that the Website or any Materials contained therein will be uninterrupted, timely, secure or error free; nor does the Website make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Website or any of the Materials contained herein.  The User also understands and agrees that any material and/or data downloaded or otherwise obtained through the Use of the Website or any of the Materials contained herein is done at his own discretion and risk and that the User will be solely responsible for any damage to his computer system or loss of data that results from the download of such material and/or data.  The User understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties.  The Company makes no warranty regarding any use of confidential or private information that User may provide.  The Company may change any of the Terms and Conditions and/or information found on the Website at any time without notice.  The Company makes no commitment to update the information found on the Website.  The Company makes no commitment to update the Materials.  The warranties and representations set forth in these Terms and Conditions are the only warranties and representations with respect to these Terms and Conditions, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose.  None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the elimination of certain warranties, so some of the above exclusions may not apply to the User.

Further, Company is not responsible for the conduct of other Users, whether online or offline.  Under no circumstances shall the Company be responsible for any loss or damage, including, without limitation personal injury or death, resulting from the use of the Website, from any User Content or Third Party Content, or the conduct of any other Users, whether online or offline.  The User of the Website is “AS-IS” and the Company, as set forth above, expressly disclaims any and all warranties.

Limitation of Liability.  COMPANY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT USER’S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF ITS ACCESS TO, USE OF OR BROWSING IN THE WEBSITE OR HIS DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SITE. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL COMPANY 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 ARISE OUT OF OR ARE 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 FOR COMMUNICATING WITH OTHER USERS), OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY COMPANY, 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 SUCH PARTIES OR ANY OTHER PARTY.

If, notwithstanding the foregoing, Company 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 the Website, or any Materials, Company’s liability shall in no event exceed the lesser of (a) the total amount the User paid to the Company to use the Website, if any, and other Products; or (b) US$100.00 in aggregate.  In its sole discretion, in addition to any other rights or remedies available to Company and without any liability whatsoever, Company at any time and without notice may terminate or restrict Users’ access to any component of the Website. Some states do not allow limitation of liability, so the foregoing limitation may not apply to the User.

Notwithstanding any termination of the User’s access to the Website or any termination of a User Account, User acknowledges and agrees that the representations and obligations of the User hereunder shall survive and continue in perpetuity.

Release.  BY UTILIZING THE WEBSITE, USER HEREBY RELEASES, REMISES AND FOREVER DISCHARGES AND GIVES UP ANY AND ALL CLAIMS AND RIGHTS WHICH IT MAY HAVE AGAINST THE COMPANY AND ITS AFFILLIATES, PARTNERS, SERVICE PROVIDERS, VENDORS AND CONTRCTORS AND EACH OF THEIR RESPECTIVE AGENTS, ATTORNEYS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES BASED ON ANY ACT, EVENT OR OMISSION, AND FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE WEBSITE AND SERVICES RELATED THERETO.  USER FURTHER WAIVES, RELEASES AND GIVES UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION.  THIS INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARTIES POLICIES, PRACTICES OR PROCEDURES; AND/OR (III) ANY FEDERAL AND/OR STATE STATUTES OR REGULATIONS.

Successors and Assigns.  Whenever the term “the Company” is used in connection with these Terms and Conditions, and in accordance with the other modes and methods set forth in the other webpages of the Website regarding its use in regard to a right, protection or benefit, it shall be construed to encompass the Company, its related entities, successors, assigns, directors, officers, employees and agents.  Further, the term “User” used in connection with these Terms and Conditions shall include his/her/its heirs, related entities, successors, assigns, directors, officers, employees and agents.

Authorized Permission for Use.  The User shall be considered an entity if the individual accessing the Website is doing so on behalf of an entity or is utilizing that entity’s computer system in connection with a task (either paid or unpaid) for that entity.  If the User is an entity, the person using the Website on its behalf hereby makes the material representation upon which he wishes the Company to rely that he is authorized to bind that entity to the Terms and Conditions set forth above, as well as any other obligations imposed or undertaken through Use of the Website.  The Company reserves the right to terminate the User’s access to, and use of, whether as an individual or entity, the Website and any of its contents, including, without limitation, the Materials, or use of any of the Company’s services at its sole discretion and without any advance notice to the User.

Dispute Resolution.  A party to these Terms and Conditions may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related or collateral to these Terms and Conditions.  All such claims or disputes, whether between or among the parties, shall be submitted to arbitration administered by a mutually acceptable arbitrator affiliated with the American Arbitration Association and its rules and guidelines shall apply, or its International Centre for Dispute Resolution, if applicable.  Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court.  Should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. The arbitration proceedings shall be in English.  The arbitrator shall have the authority to award any remedy or relief that a court of the State of New Jersey could order or grant.  Each party will perform all acts, including the execution and delivery of further documents, as the arbitrator deems necessary or desirable to confirm and carry out the terms of the award rendered.  Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof.  The award rendered by the arbitrator in any arbitration is final and binding on the parties.  The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.

However, notwithstanding the foregoing, either prior to, during or after the arbitration process, any party to these Terms and Conditions may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of these Terms and Conditions; (c) to obtain specific performance; and/or (d) to compel the arbitration or further its purposes and/or to enforce a settlement or award of such arbitration; and/or (e) for any other equitable relief.

Jurisdiction.  The User utilizing the Website agrees that the laws of the State of New Jersey shall govern these terms and conditions and any dispute, controversy or claim directly or indirectly related to such Use.  Further, the User consents to the jurisdiction of the Superior Court of the State of New Jersey or, if federal jurisdiction exists, at the option of either party, to the jurisdiction of the United States District Court for the District of New Jersey, Camden Vicinage, to seek injunctive relief, compel an arbitration and/or enforce an arbitrator’s award.  Any arbitration shall be conducted in Cape May County, New Jersey.  Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of the User’s current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of New Jersey.  The User agrees that regardless of any statute or law to the contrary, any claim or cause of action by User arising out of or related to use of the Website or any services or goods offered or sold by the Company must be filed within one (1) year after such claim or cause of action arose or be forever barred and therefore the statute of limitations is limited to one (1) year.

Further Assurances.  The User covenants and agrees to perform further all acts and execute all supplementary instruments or documents which may be requested by the Company to carry out the provisions and effectuate the intent of these Terms and Conditions.

Assignment.     Company may freely assign its rights and obligations in and to these Terms and Conditions.  The User acknowledges that it may not assign, transfer or sell its rights under these Terms and Conditions without Company’s express written consent, which may be unreasonably withheld. Any purported assignment without Company’s consent shall be deemed null and void.

Severability.  If any portion of these Terms and Conditions is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted.  Any invalid or unenforceable portion shall be construed as narrowly as possible in order to give effect to as much of the Terms and Conditions as possible.

Links to Other Sites.  The User acknowledges and agrees that the Company has no responsibility for the accuracy or availability of information provided by websites to which a User may link from the Website (“Linked Sites”).  Links to Linked Sites are provided as a convenience to the User, and do not constitute an endorsement by or association with the Company of such sites or the content, products, advertising or other materials presented on such sites.  The Company does not author, edit or monitor these Linked Sites.  User acknowledges and agrees that the Company is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites.  If User accesses a Linked Site, he does so at his own risk.

No Third Party Beneficiaries.  These Terms and Conditions are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein.  Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third-party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms and Conditions or otherwise set forth in the Website, except as may be specifically provided herein.  These Terms and Conditions shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms herein.  No third party shall have any right, independent of any right that exists irrespective of these Terms and Conditions, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.

Prohibited by Law.  In the event that any aspect of the Website or these Terms and Conditions is prohibited by law in User’s jurisdiction, User agrees not to Use the Website or any of the Company Products.  It is solely User’s responsibility to determine whether it is allowed by law to participate in the Website.  Without limitation, the User releases Company from all liability that could arise from User’s prohibited participation in the Website, prohibited purchase of Products or acceptance of these Terms and Conditions.  Moreover, and without limiting the indemnification otherwise provided herein, User shall indemnify, defend and hold Company and all Company Parties harmless for any and all damages relating to a violation of this paragraph.  

International Use.  In light of the international scope of the Internet, User agrees to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content.  Without limitation, User acknowledges and agrees that it shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which the User may reside.  In the event that the User is located outside the United States, the User acknowledges and agrees that he, and not the Company, is responsible for ensuring that any Products that he may purchase from Company are permitted to be imported into the country in which he is located.

Miscellaneous.  The Company’s failure to enforce any term, provision or condition of these Terms and Conditions, including the breach or default thereof, by conduct, course of dealing or otherwise, in one or more instances shall not be deemed a waiver.  To the extent that a provision of these Terms and Conditions is deemed unenforceable, the balance of it shall remain in full force and effect.  The Parties may not change, modify nor amend this Agreement unless such change, modification or amendment is made in writing and signed by both Parties.  The User specifically acknowledges that he has not accepted these Terms and Conditions on reliance of any representations or other promises of the Company, which is not specifically included herein.  The User specifically stipulates that these Terms and Conditions do not constitute a contract of adhesion.  The gender terms in these Terms and Conditions shall apply equally to either gender.  The headings in these Terms and Conditions shall have no force and effect.  User acknowledges and agrees that these Terms and Conditions and the privacy policy on the Website constitute the entire agreement of the Parties hereto relating to the subject matter hereof, and any prior agreements, understandings, representatives and commitments concerning such subject matter, whether oral or written, are hereby superseded and terminated in their entirety and are of no further force or effect.  User acknowledges and agrees that it has not agreed to these Terms and Conditions in reliance upon any representation or promise other than those specified herein.

By his Use of the Website, the User represents that he has had the opportunity to review these Terms and Conditions with counsel of the User’s choosing, if the User wished to do so.  The User further acknowledges that he has thoroughly read these Terms and Conditions; understands that he is giving up certain legal rights that may otherwise exist; has asked any questions he desires to clarify its meaning; and believes it is in his interest to nevertheless proceed with to utilize the Website.