1. Acceptance; Eligibility; Compliance; and Termination of Rights.
1.2 Age and Eligibility Requirements. The Technology is only intended for users who are 18 years or older and who are capable of entering into legally binding contracts. If you are under 18 years of age or are incapable of entering into a legally binding contract, please do not access or use any of the Technology.
1.4 Termination of Rights. Your right to use any of the Technology terminates immediately if you violate any provision of these Terms or the Policy.
1.5 Account Information. If you choose, or are provided with, a user name, password, or any other piece of information as part of BP’s security procedures pertaining to any of the Technology (collectively, Account Information), you must treat such Account Information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account Information is personal to you and agree not to provide any other person with access to any of the Technology, by using your account user name, password, or other security information. You agree to notify BP immediately of any unauthorized access to or use of your Account Information. You should use particular caution when accessing the Technology with Account Information from a public or shared computer so that others are not able to view or record your account information or other personal information.
2. Intellectual Property.
2.1 Content and Marks. With the exception of content provided by you on the Technology, BP owns, licenses, or lawfully uses all of the content and works contained in the Technology including without limitation: (a) any text, software, graphics, photos, sounds, music, videos, designs, compilations, magnetic translations, digital conversion interactive features and the like (collectively, the Content); (b) any trademarks, service marks, trade dress, and logos, whether owned by BP or any third party (collectively, the Marks); and (c) any know-how, show-how, methodologies, equipment, or processes used by BP to provide the Technology (collectively, the Procedures). The Content, Marks, and Procedures are provided to you “as-is” solely for your personal non-commercial use of the Technology and may not be downloaded, copied, reproduced, distributed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever not expressly permitted under these Terms without the prior written consent of BP. All rights not expressly granted under this subsection of these Terms are expressly reserved.
2.2 Licenses to BP and Waiver of Rights. You hereby grant to BP an irrevocable, royalty-free, worldwide, assignable, sub-licensable license to: (a) use any material or content that you submit on the Technology for the purpose of (i) operating the Technology, or (ii) marketing by BP by any means and in any available media, whether now known or yet to be developed; and (b) making any and all modifications to material or content that you submit on any of the Technology. You acknowledge and agree that you waive your moral rights to be identified as the author on any and all material or content identified under this subsection of these Terms.
2.3 Intellectual Property Complaints. BP respects the intellectual property rights of others, and requires that anyone who uses any of the Technology do the same. If you believe that your work has been copied or displayed on or via the Technology that in any way that constitutes copyright infringement or infringement of another right, please submit a notice with the following information to BP’s Copyright Agent (as designated pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)(2)) via mail or e-mail as provided below:
- Your address, telephone number, and email address;
- A description of the work(s) that you claim have been infringed;
- A description of where the alleged infringing material(s) are located;
- A statement by you that you have a good faith belief that the disputed use of such work(s) are not authorized by their owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that all of the information in your notice is accurate and that you are the owner or are authorized to act on the owner’s behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the work(s).
Lucas S. Michels
Ironmark Law Group, PLLC
215 N.E. 40th Street, Suite C-3
Seattle, Washington 98105
Tel: +1 (206) 547-1914
Should work(s) you had uploaded to the Technology be removed or disabled by BP based upon a notice submitted by another Technology user or rights holder pursuant to this subsection of the Terms, and you believe that such a complaint is incorrect or submitted in error, you may submit a counter notice to BP’s copyright agent via the e-mail or mailing address detailed above including the following information:
- Your address, telephone number, and email address;
- A description of the work(s) that have been removed or to which access has been disabled and the location at which the work(s) appeared before it was removed or access to it was disabled;
- A statement by you, made under penalty of perjury, that you have a good faith belief that the work(s) were removed or disabled as a result of mistake or misidentification of material to be removed or disabled;
- A statement that you consent to (a) the jurisdiction of Federal District Court for the judicial district in which you are located (if you reside in the United States), (b) the jurisdiction of any Federal District Court in which BP may be located (if you reside outside of the United States), and (c) that you or your agent will accept service of process from the person or agent who provided the original notice to BP; and
- Your or your agent’s electronic or physical signature.
3. Indemnification. You will defend, indemnify and hold harmless BP, and any of BP’s employees, managers, members, officers, agents, and other affiliates (collectively, the Affiliated Parties) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses, including, without limitation, attorneys’ fees and costs, arising from: (a) your use or misuse of any of the Technology; (b) your violation of any term of these Terms or the Policy; (c) your violation of any third-party right, including, without limitation, any intellectual property, property, personality, or privacy right; or (d) any claim that your use of any of the Technology causes or caused damage to a third party. Your indemnity obligation under this section of these Terms survives these Terms and your use of the Technology.
4. Representations and Warranties. You represent, warrant and covenant that: (a) you are 18 years of age or older and are fully able to enter into, accept, and comply with these Terms; (b) all information and content you provide on the Technology is accurate and truthful; (c) you will not use, copy, or distribute in any medium, any part of the Content, Marks, or Procedures other than for purposes expressly authorized under these Terms; (d) you will not alter or modify any part of any of the Technology, nor circumvent, disable, or otherwise interfere with the security, copy-protection, or use-restriction features of any of the Technology, unless expressly permitted under these Terms; (e) you will not access any of the Technology through any technology or means other than as explicitly authorized by BP (e.g. via any automated system, including without limitation, “robots” or “spiders”); (f) you will refrain from any act in relation to any of the Technology that is in breach of any law or regulation of any applicable jurisdiction; (g) you will not use any of the Technology for prohibited commercial uses including, without limitation, selling or distributing any account access information (i.e. username(s) and password(s)) for any of the Technology or copies of the Technology (in whole or part), unless expressly permitted in these Terms or by express written agreement with BP; (h) you will refrain from any act in relation to any of the Technology that will harm BP or any third party, including without limitation, your use, delivery or transmission of any viruses, unsolicited e-mails, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots, or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information in relation to any of the Technology; (i) you will not to access without authority, interfere with, damage, or disrupt any part of the Technology, any equipment or network on which any Technology is stored, or any software used in the provision of the Technology; (j) you will refrain from any act that may infringe or breach any intellectual property right, privacy right, or other right of BP, any Affiliated Party, or any other third party; (k) you will not use any of the Technology to submit to BP or any other person or entity, any information that may be deemed obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, or untrue; (l) you will adopt reasonable safety precautions to protect your account username(s) and password(s) for the Technology; (m) you will ensure that any credit card information you supply to the Technology is true and complete; and (n) you will ensure that any charges incurred by you on the Technology will be honored by your credit card company, and you will pay the charges you incurred on the Technology, including any applicable taxes.
5. Third Parties.
5.2 Third-Party Content. Content on a third-party website or application linked from any of the Technology (collectively, Third-Party Content) is made available “as is”, and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited without the authorization of such third-party website or application owner. BP is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to any Third-Party Content. BP does not endorse any content, opinion, recommendation, or advice expressed in any Third-Party Content. BP expressly disclaims any and all liability arising out of or relating to: (a) your use of any Third-Party Content; and (b) any Third-Party Content that is inaccurate, offensive, indecent, or objectionable. You expressly waive any legal or equitable rights or remedies you have or may have against BP and will indemnify and hold BP harmless to the fullest extent allowed by law regarding all matters related to your access and use of Third-Party Content.
5.3 Third-Party Product and Service Providers. BP may use third-party product and service providers to assist in the operation of the Technology including without limitation hosting, hardware, software, networking, storage, payment, and related technology required to provide the Technology (collectively, Third-Party Providers). BP will make a good faith effort to notify and assist in remedying any failure of any Third-Party Provider to sufficiently provide any such services, but BP will not be liable to you for any failure of a Third-Party Provider to provide any such service to the Technology.
5.4 Third-Party Software. The Technology may include various third-party software components or software services (Third-Party Software) that are provided to you under separate license terms with owners of such Third-Party Software (collectively, Third-Party Terms). You are permitted to use Third-Party Software in conjunction with the Technology, provided that such use is consistent with these Terms, the Policy, and applicable Third-Party Terms. Nothing in these Terms is intended to impose further restrictions on your use of Third-Party Software in accordance with any Third-Party Terms.
5.5 Interoperation. The Technology may also enable interoperation with certain third-party operating systems and applications not included or authorized by BP. BP does not provide you with any licenses to such third-party operating systems and applications, and it is solely your responsibility to obtain all necessary licenses for such third-party operating systems and applications from their owners’ respective vendors.
6. Enforcement After Termination. All provisions of these Terms will survive termination of your use of the Technology including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
7. Availability. BP reserves the right to amend, restrict, or terminate the Technology, in whole or part, in its sole discretion without notice. BP will not be liable if for any reason any or all of the Technology is unavailable at any time or for any period.
8. Geographic Restrictions. The owner of the Technology is based in Seattle, Washington, United States. BP makes no claims that any of the Technology is accessible or appropriate outside of the United States. Access to the Technology, in whole or part, may not be legal by certain persons or in certain countries. If you access any of the Technology from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and regulations.
9. Limitation of Liability.
9.1 Warranty Disclaimer. The Technology is licensed and provided to you “as is”, and BP disclaims any and all other warranties pertaining to the Technology, whether express, implied, or statutory including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, timeliness, title, or non-infringement of third-party rights, to the fullest extent permissible by applicable law. BP expressly does not warrant that: (a) the Technology will meet your requirements and expectations; (b) operation of the Technology will be uninterrupted, timely, secure, or error free; (c) defects or errors in the Technology will be corrected; (d) the Technology will be compatible with future products or services offered by BP or any third party; and (e) any information or data stored or transmitted through the Technology will not be lost, corrupted, or destroyed. You assume responsibility for selecting or using the Technology to achieve your intended requirements and expectations, and for the results obtained from your use of any of the Technology. You shall bear the entire risk as to the quality and the performance of the Technology.
9.2 Damage Limitations. In no event will BP be liable to you for any direct, indirect, incidental, special, punitive or consequential damages whatsoever resulting from: (a) Your use or misuse of any of the Technology; (b) personal injury or property damage of any kind resulting from your use of the Technology, whether based on warranty, contract, tort, or other legal theory, and whether or not BP has been advised of the possibility of such damages; (c) conduct of any third party on or via any of Technology; (d) unauthorized access to data storage facilities or equipment owned, lease or used by BP; (e) interruption, unavailability or errors associated with any of the Technology; or (f) bugs, viruses, or similar code which may be transmitted to or through any of the Technology. The foregoing limitations of liability apply to the fullest extent permitted by applicable law. In no event shall BP or any of its suppliers have any obligations or liabilities to you or any other person for loss of profits, for loss of business or use, or for incidental, punitive, special or consequential damages, whether based on contract, tort (including negligence), products liability, or any other theory or form of action, even if BP has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, or use of any good or service therefrom. BP’s sole and entire maximum liability (and the liability of our suppliers) for any reason, and your sole and exclusive remedy for any cause whatsoever, shall be limited to the actual amount paid by you for the goods and services you have ordered through the Technology over the previous annual period.
10. General Provisions.
10.1 Governing Law, Jurisdiction and Dispute Resolution. These Terms will be governed by and interpreted under the laws of the State of Washington. You and BP will conduct friendly negotiations to resolve any dispute arising from or out of these Terms, which may include mediation if requested by either party. Should mediation fail, you irrevocably consent to resolve any dispute or conflict arising out of or relating to the Terms by binding arbitration in Seattle, Washington by one (1) arbitrator through JAMS Dispute Resolution Services, and in accordance with the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures. Any judgment resulting from such a proceeding will be enforceable in any applicable state or federal Court. The party substantially prevailing in any such proceeding will be entitled to recover all costs and expenses of such proceeding, including reasonable attorney’s fees and costs.
10.2 Transferability. These Terms will be binding on and inure to the benefit of you and BP, and both parties’ respective successors, assigns, heirs and personal representatives. You will not assign or transfer any right or obligation under these Terms without the prior written consent of BP and any attempted assignment without BP’s prior written consent will be null and void. BP may transfer any rights or obligations under these Terms without your prior written consent.
10.3 Completeness and Severability. These Terms and any other legal notices published by BP on the Technology constitutes the entire Terms between you and BP concerning your use of the Technology. If any provision of these Terms is deemed invalid by a Court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which remain in full force and effect.
10.4 Waivers. No term or provision of these Terms will be considered waived by BP, and no breach excused by BP, unless such waiver or consent is in writing and signed by BP. The waiver by BP of, or consent by BP to, a breach, of any provision of these Terms by you will not operate or be construed as a waiver of, consent to, or excuse of, any other or subsequent breach by you.
10.5 Other Definitional Terms, Terms of Construction. The words hereof, herein and hereunder and words of similar import when used in these Terms refer to these Terms as a whole and not to any particular provision of these Terms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. Unless the context in which used herein otherwise clearly requires, or has the inclusive meaning represented by the phrase and/or. All incorporations by reference of covenants, terms, definitions or other provisions from other agreements are incorporated into these Terms as if such provisions were fully set forth herein, and include all necessary definitions and related provisions from such other agreements. References to statutes, regulations or laws, include any amendments, modifications or replacements of such statutes, regulations or laws.
10.6 Terms and Technology Modification. BP reserves the right, at its sole discretion, to modify or replace any and all of the Terms, or change, suspend, or discontinue the Technology or any aspect or portion thereof, at any time by posting a notice on the Technology or sending you a notice through the Technology or by e-mail. BP may also impose temporary limits on certain features of the Technology or restrict access to portions or all of the Technology without notice. BP will not be liable to you for any changes or modifications to these Terms. BP suggests that you check these Terms periodically for changes. Your use of the Technology following BP’s changes to the Terms constitutes your acceptance of such changes.