HOMEFAIL TERMS OF SERVICE
THIS TERMS OF WEBSITE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR” OR “YOURSELF”) AND HOMEFAIL.COM (“OUR,” “US,” “WE” OR “HOMEFAIL”), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED WEBSITE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, “THE WEBSITE”). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE WEBSITE. BY REGISTERING FOR, USING OR OTHERWISE ACCESSING THE WEBSITE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE ANY REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE WEBSITE IN ANY MANNER.
When we refer to the “use” of the Website in this Agreement, we mean any actual or attempted access or use of the Website, including, without limitation, any transmission, exchange of information or communication associated with the Website. These terms and conditions, together with any other terms of use applicable to other HomeFail owned or controlled websites and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement, including, without limitation our Privacy Policy constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Website.
1. ACCESS TO THE WEBSITE
Subject to certain limitations as described herein, you are granted the right to access our text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) under certain terms and conditions as set forth in this Agreement. In order to use the Website, you must obtain access to the Internet and pay any fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to access the Content. Certain areas and functions of the Website may require registration, while other areas and functions do not.
2. HOMEFAIL PRIVACY POLICY
HomeFail takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collection and use of your personally identifiable information in connection with your use of the Website. Our Privacy Policy is set forth at http://www.HomeFail.com/privacy/
3. WEBSITE OPERATION
HomeFail will make reasonable efforts to keep the Website operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of HomeFail may, from time to time, result in temporary Website interruptions. HomeFail also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Website with or without notice. You agree that HomeFail shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Website.
4. ABILITY TO ACCEPT TERMS OF WEBSITE
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 Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Website. There are lots of other great websites for you. Talk to your parents about what sites are appropriate for you.
5. USER RESTRICTIONS
(a) By using the Website, you acknowledge and agree that you have no right to provide any files obtained through the Website to any other party or through any other means. You agree that you will not duplicate or otherwise reproduce the Content, or any portion thereof, onto any physical medium, memory or device now known or hereinafter devised. In addition, you agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any Content protection methods.
(b) You may not use or allow others to use the Website, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Website, that: (1) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (2) violates any law or regulation or the rights of others; (3) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Website; and/or (4) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your use of the Website. You also may not use, nor allow others to use the Website, directly or indirectly, to: (x) attempt to or actually disrupt, impair or interfere with, alter or modify the Website or any information, data or materials posted and/or displayed by us or anyone else; (y) act in a way that affects or reflects negatively on us, the Website, or anyone else; (z) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Website.
(c) You are prohibited from violating or attempting to violate the security of the Website, including, without limitation: (1) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (2) attempting to probe, scan or test the vulnerability of the Website or to breach security or authentication measures, regardless of your motives or intent; (3) attempting to interfere with or disrupt the Website or Website to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (4) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
(d) You agree not to use the Website for any commercial uses unless you obtain HomeFail’s prior written approval. Such commercial uses include without limitation (1) the sale of access to the Website; and (2) the sale of advertising, sponsorships, or promotions placed on or within the Website or Content.
6. THIRD PARTY CONTENT PROVIDERS
In some cases, HomeFail derives its rights to use the Content offered on the Website from third party content owners (“Content Providers”) for fixed periods of time. As well, HomeFail is sometimes required to pull certain Content off the Website for legal reasons. Therefore, certain Content offered or advertised by HomeFail may not be available when you try to access it, and not all Content is available in all countries or territories.
7. LINKS TO OTHER SITES
The Website may contain hyperlinks and pointers to other sites on the Internet that may be maintained by third parties (“Other Sites”). If you use the hyperlinks to access these Other Sites, you will leave the Website and your browser will be re-directed to the Other Sites. The Other Sites may have their own terms of service and privacy policy and those Other Sites may have different practices and requirements than the Website. HomeFail may not have knowledge of, and is not responsible for, the content, information, Websites, products or advertisements presented by any Other Site which you use at your own risk. HomeFail does not warrant or make any representation regarding the legality, accuracy, quality or authenticity of content, information, Websites or products presented by Other Sites. The hyperlinks to Other Sites do not constitute an endorsement by HomeFail of any Other Site(s) or resources, or their content, information, services or products. The Website is only providing these links to you as a convenience. The terms of service and privacy policy of any Other Sites shall apply to your access and use of them. HomeFail accepts no responsibility for the content or conduct of Other Sites
8. THIRD PARTY CONTENT POLICY (YOUTUBE, VIMEO, ETC.)
Please note that with regard to any content made available on or through the Website which contains or displays a third party logo (i.e. YouTube, Vimeo, etc.) or which is provided via a third party’s player and is hosted on a third party’s servers; HomeFail does not have the ability to permanently remove all or any such content from the third party’s servers. Therefore, if you have a complaint concerning any video content made available on the Website that is provided by a third party, you should contact the third party directly in accordance with copyright policies of the third party. If you believe that your work is available on the Website via a third party player in a way that constitutes copyright infringement, please: (1) contact the third party directly in accordance with its copyright policies; and (2) contact HomeFail by sending us a notice in accordance with the provisions of Section 10, below.
9. INTELLECTUAL PROPERTY RIGHTS
(a) The Content available through the Website is the property of HomeFail or its Content Providers and is protected by copyright and other intellectual property laws. Content received through the Website may be accessed for your personal, non-commercial use only.
(b) You acknowledge that HomeFail retains exclusive ownership of the Website and all intellectual property rights associated therewith. The Website contains proprietary and confidential information that is protected by copyright laws and international treaty provisions. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Website or the Content, and HomeFail reserves all rights not expressly granted hereunder.
You may not:
• Frame or mirror any part of the Website without our express prior written consent.
• Create a database by systematically downloading and storing all or any Content.
• Copy, reproduce, transfer or access (except as expressly authorized by this Agreement), re-license, reverse engineer, decompile, disassemble, translate, publish, transmit, distribute, display, broadcast, re-broadcast, redistribute, modify, create derivative works from, capture or store in any physical media, market, rent, sell, lease, sublicense, or participate in any sale of or exploit in any way, in whole or in part, directly or indirectly, the Website or any related software.
• Use any robot, spider, rover, scraper, offline readers, site search/retrieval applications or any other data mining technology or automatic or manual process, system or software to monitor, cache, frame, mask, extract data from, copy or distribute the Content (except as may be a result of standard search engine or internet browser usage) or circumvent the navigational structure or presentation of the Website, without the express prior written consent of HomeFail.
• Bypass any measures HomeFail may use to prevent or restrict access to the Website.
(c) The HomeFail logos and other trademarks on the site are the property of their respective owners and are owned by, licensed to, or, where required, used with permission by HomeFail and may not be reproduced, copied, or manipulated in any manner without the express, written approval of the trademark owner
(d) You shall promptly notify HomeFail in writing upon your discovery of any unauthorized use or infringement of the Website or the Content or HomeFail’s patent, copyright, trade secret, trademarks or other intellectual property rights. Except as expressly provided for herein, any copy or use of any portion of the Website shall constitute an act of copyright infringement and a breach of this Agreement. Furthermore, HomeFail may in its sole discretion pursue any other available rights or remedies at law or in equity for a violation of this Agreement or such copyright infringement.
10. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)
(a) Notice of Copyright Infringement: If you are a copyright owner or an agent thereof and believe that any 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 Website provider to locate the material;
4. Information reasonably sufficient to permit the Website 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
6. 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.
HomeFail’s designated Copyright Agent to receive notifications of claimed infringement is:
Marc Lyman
Flashpoint Studios
2726 Shelter Island Dr., #130
San Diego, CA 92106
Email – (with the words “DMCA Complaint” in the subject line).
Fax: 877_352_7471
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to HomeFail customer service through the Contact Page. You acknowledge that if you fail to comply with all of the requirements of this Section 12(a), your DMCA notice may not be valid.
(b) Counter-Notice of Copyright Infringement: To file a counter-notification with us, you must provide a written communication that sets forth the items specified below.
Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of users* who are repeat infringers. So, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact a lawyer.
A counter-notification must include the following specific elements:
1. Identification of the specific URLs of material that HomeFail has removed or to which HomeFail has disabled access;
2. Your full name, address, telephone number, email address, and your HomeFail username, if applicable.
3. The statement: “I consent to the jurisdiction of the Federal District Court for the district in which HomeFail is located, and will accept service of process from the claimant.”
4. The statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
5. Signature. A scanned physical signature or a valid electronic signature will be accepted.
* We can only accept a counter-notification directly from the user whose video has been disabled. For verification, we require that counter-notifications be submitted from the email address associated with the user. For purposes of this DMCA Policy a “user” means anyone who, along with their submitted material, provides HomeFail with their name, email address, telephone number and/or any other identifying information which would allow us to contact the person directly via email.
Send the written communication to the following address:
Marc Lyman
Flashpoint Studios
2726 Shelter Island Dr., #130
San Diego, CA 92106
Email – (with the words “DMCA Counter-Notice” in the subject line).
Fax: 877_352_7471
If a counter-notice is received by the Copyright Agent, HomeFail 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 HomeFail’s sole discretion.
The HomeFail DMCA Policy can also be found at http://www.HomeFail.com/dmca/
11. USER GENERATED CONTENT SUBMISSIONS
(a) We may, but are not obligated to, offer interactive features that allow users to, among other things, submit or post Content (“User Generated Content”) or links to third party Content on areas of the Website accessible and viewable by other users of the Website and the public. You represent and agree that all User Generated Content or links submitted or posted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste, and that you have obtained all necessary rights, licenses or clearances. You also further agree to provide accurate and complete information in connection with your submission or posting of any User Generated Content or links on the Website. “User Generated Content” includes, without limitation, videos, comments, photos, articles, audio files, applications and any other content whether copyrightable or not.
(b) We may request registration information from you before you may submit or post User Generated Content or links on the Website. You will provide us with true, accurate, current and complete information. You will promptly update your registration to keep it accurate, current and complete. If we issue you a password, you may not reveal it to anyone else. You may not use anyone else’s password. You are responsible for maintaining the confidentiality of your accounts and passwords, if applicable. You agree to immediately notify us of any unauthorized use of your passwords or accounts or any other breach of security. We will not be responsible for any loss or damage that may result if you fail to comply with these requirements. If you choose a username that, in our sole discretion, is obscene, indecent, abusive or which might otherwise subject us to public disparagement or scorn, we reserve the right, without prior notice to you, to automatically change your username, delete your submissions and/or posts from the Website, deny you access to the Website, or any combination of these options.
(c) HomeFail does not claim any ownership rights in User Generated Content that you submit or post on, through or in connection with the Website. You retain any rights that you may have in your User Generated Content submitted or posted on through or in connection with the Website, subject to the limited license herein. By submitting or posting any User Generated Content on, through or in connection with the Website, you hereby grant to HomeFail a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such User Generated Content fully-paid and royalty free in all forms and formats of media now known or in the future created, including, without limitation, distributing part or all of the Website and any User Generated Content included therein. You further agree to a waiver of any ”moral rights,” or any similar rights to any User Generated Content under any jurisdiction.
(d) The license you grant to HomeFail is non-exclusive (meaning you are free to license your User Generated Content to anyone else in addition to HomeFail), fully-paid and royalty-free (meaning that HomeFail is not required to pay you or anyone else deriving rights from you for the use of the User Generated Content that you post in all forms and formats of media now known or in the future created), sublicensable (so that HomeFail is able to use its affiliates, subcontractors and other partners), perpetual (meaning that no termination of this Agreement will affect the license granted by you), and worldwide (because the Internet and the Websites are global in reach).
(e) HomeFail reserves the right not to post or publish any User Generated Content, and to delete, remove or edit any User Generated Content, at any time in its sole discretion without notice or liability.
(f) HomeFail has the right, but not the obligation, to monitor any information and User Generated Content submitted or posted by you or otherwise available on the Website, to investigate any reported or apparent violation of this Agreement, and to take any action that HomeFail in its sole discretion deems appropriate.
12. TERMINATION
(a) We may terminate this Agreement, restrict, suspend or terminate your use of the Website immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us. Without limitation of any other provisions hereof regarding termination, we reserve the right to terminate your use of the Website, without cause, upon reasonable notice.
(b) You may terminate this Agreement by ceasing to use Website. Termination is your sole right and exclusive remedy if you are not satisfied with the Website.
(c) Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, if applicable.
13. DISCLAIMER OF WARRANTIES
YOU AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. YOU AGREE THAT YOUR USE AND ACCESS TO THE WEBSITES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, HOMEFAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITES AND YOUR USE THEREOF. HOMEFAIL MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE 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 OUR 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 OUR 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. HOMEFAIL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR WEBSITE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITES OR ANY HYPERLINKED WEBSITES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND HOMEFAIL 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 WEBSITES. AS WITH THE PURCHASE OF A PRODUCT OR WEBSITE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL HOMEFAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM 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 OUR 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 OUR 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 YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT HOMEFAIL SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
15. INDEMNITY
You agree to defend, indemnify and hold HomeFail harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (1) your breach of, or failure to comply with, the terms and conditions of this Agreement; and/or (2) your use of the Website. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
16. CHOICE OF LAW AND CONSENT TO JURISDICTION
The Website shall be deemed a passive website that does not give rise to personal jurisdiction over HomeFail, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and HomeFail that arises in whole or in part from the Website shall be decided exclusively by a court of competent jurisdiction located in San Diego County, California. YOU AND HOMEFAIL 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.
17. OBJECTIONABLE MATERIAL
You understand that by using the Website, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Website at your sole risk and that HomeFail shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content descriptions are provided for convenience, and you acknowledge and agree that HomeFail does not guarantee their accuracy.
18. INFORMATION PROVIDED
You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Website is at your sole risk. HomeFail reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Website, or to deny access to the Website to anyone at any time. You acknowledge and agree that HomeFail is not responsible for any User Generated Content posted by users of the Website. Prior to making any decisions based on information posted on the Website, you are advised to verify the information. HomeFail shall not have any liability arising from your acts or decisions based upon the information provided on the Website.
19. OTHER IMPORTANT PROVISIONS
(a) Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 19.
(b) You shall not use the Website in any manner contrary to local, state or federal law. HomeFail expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your access to the Website immediately upon notice of your failure to comply with any such local, state or federal law.
(c) Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by us with respect to such use.
(d) If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
(e) No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
(f) You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
(g) This Agreement, together with our Privacy Policy and any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Website.
(h) Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Website, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.
(i) A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
20. CHANGES OR MODIFICATIONS
We reserve the right to add, delete, change or modify parts of this Agreement at our sole discretion and at any time without notice or liability to you. If we do this, we will post the changes to the Agreement on this page and will indicate the effective date of the Terms of Service at the bottom of the page. It is important for you to refer to this Agreement from time to time to make sure that you are aware of any additions, revisions, or modifications that we may have made to this Agreement. Your continued use of the Website constitutes your acceptance of the new Terms of Service.
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