Use of our Service and this website is governed by the terms and conditions described below. Please read them carefully. Your use of our Service and this website indicates your acceptance of these terms and conditions. Talking Cranes, LLC (the “Company”) reserves the right to make modifications to these Terms & Conditions of Use at any time. You accept the obligation to review these Terms & Conditions of Use prior to each use, and your use of this website constitutes an acceptance to be bound by any modifications. These Terms & Conditions of Use are referred to hereafter as the “Agreement”.
1. The Service Licensed. The term “Service” shall mean (a) the Internet web pages, data, analyses, screens, reports, documentation and other information of any kind that are accessible through the Company’s web application (the “Website”), as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein, (b) the products, services, software and other content offered to Users in the manner described on the Website and (c) communications from the Company to Users.
2. Grant of License. Subject to the terms and conditions of this Agreement, the Company grants to you, the “User”, during the Term (as defined in Section 6 below), a limited nonexclusive, nontransferable, revocable license solely in connection with User’s personal use, and not for resale or public performance of any kind, to access and use the Service (or any portions thereof). The Company reserves the right at all times and without notice to (i) restrict or prevent User’s access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion thereof). The Company shall have no obligation to correct or update the Service. For the purposes of the license grant in this Section 2, the term “User” shall include individuals and any entity on behalf of which this Agreement is being reviewed and accepted and such entity’s employees and other individual users.
3. Restrictions on Use. User may not (i) use, copy, modify, merge, install, transfer or distribute the Service, except as expressly provided in this Agreement; (ii) reverse-engineer, decompile, translate, disassemble or separate the components of the Service (including, without limitation, viewing or otherwise obtaining source code); (iii) sublicense, rent, sell or lease the Service or any part thereof; (iv) use the Service or any part thereof for third-party training, commercial time-sharing or service bureau use, except as expressly provided in this Agreement or on the Website; (v) remove from the Service or alter any copyright or trademark notice contained therein; (vi) use the Website for any unlawful purpose; (vii) express or imply that any statements User makes are endorsed by us, without our prior written consent; (viii) transmit (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party’s intellectual property or other rights, (b) any material, non-public information about individuals or companies without the authorization to do so, (c) any trade secret of any third party, or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding; (ix) transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; (x) “frame” or “mirror” any part of the Website without our prior written authorization; (xi) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents; (xii) harvest or collect information about Website visitors or members without their express consent; or (xiii) post or otherwise distribute material that is subject to a copyright unless you are the owner of such copyright or you have been granted permission for such actions from the copyright owner. The foregoing restrictions on use may be modified, expanded or reduced by the Company elsewhere on the Website. In such case, such modification, expansion or reduction shall be incorporated herein as if stated in full herein.
4. Submissions and Postings. Please note that, because we allow or intend to allow Users to post text, software, images, scripts, graphics, photographs, sounds, music, videos, audiovisual materials and other information and intellectual property on the Website and therefore redistribute materials you give us, we acquire certain rights in those materials. Therefore, by sending or transmitting to us information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials”), or by posting such Materials to any area of the Website, you grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Materials in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Materials. None of the Materials shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we shall not be liable for any use or disclosure of any Materials. The foregoing rights may be modified, expanded or reduced by the Company elsewhere on the Website. In such case, such modification, expansion or reduction shall be incorporated herein as if stated in full herein. You are solely responsible for your communications and the consequences of their posting and for the content and information you provide, distribute, post, include, link to, or otherwise upload to our Website. You also agree that we are only acting as a passive conduit for the online distribution and publication of your content. However, although we are not obligated, we reserve the right to take any action with respect to your content in our sole discretion.
(a) We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Website by Users. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will we or our affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Website. We cannot and do not take responsibility for, the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Website.
(b) The opinions expressed on the Website by Users reflect solely the opinions of the Users who post thereon and do not reflect the opinions of the Company. We have no obligation to monitor User postings on the Website. However, User acknowledges and agrees that we have the right (but not the obligation) to monitor the Website and the materials any User may transmit or post; to alter or remove any such materials; to disclose such materials and the circumstances surrounding their transmission to any third party; to protect ourselves, our suppliers, sponsors, or advertisers and our members and visitors; and to comply with legal obligations or governmental requests.
(c) Users of the Website must not post sexual, ethnic or racial or other discriminating slurs, or material which contains no relevant or constructive content or profanity. Nor shall users identify individuals in a negative or derogatory fashion. Users are also prohibited from posting any proprietary information, trade secrets or confidential information which is the property of any other individual or entity, without the permission of such individual or entity. Although the Company has no obligation to do so, the Company may monitor messages and other information posted on its Website and reserves the right to delete portions of or entire posts that violate the above rules, messages or topics that are unrelated to the Service, advertisements or other commercial messages and other postings, in our sole discretion. If you believe a message violates our member policies, please contact the Company immediately email@example.com so that we can consider its editing or removal.
6. Term. The term of this Agreement (the “Term”) shall commence on the date on which User first accesses or utilizes the Service or the Website in any way (the “Effective Date”) and will continue so long as User continues to access or utilize the Service or the Website.
7.1 Proprietary Information. User acknowledges and agrees that: (i) the Service, including, without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by the Company or its third party content providers (“Content Providers”), as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of the Company; (iii) the Proprietary Information is licensed, rather than sold, to User pursuant to this Agreement; and (iv) User has no rights in the Proprietary Information, other than the rights and licenses specifically granted to User pursuant to this Agreement.
7.2 Confidentiality. User hereby acknowledges that the Company may disclose to User, as part of or in conjunction with Proprietary Information, valuable confidential information of the Company. User agrees to hold all such confidential information in confidence and not to disclose such confidential information to anyone other than User's employees with a bona fide need to know, provided such employees are governed by a parallel confidentiality obligation of equal or greater force. Additionally, User agrees to use at least that degree of care which User uses to protect User’s own information of a similar confidential nature, but in no event less than reasonable protection. Excluded from such confidential information is information which, as proven by User by clear and convincing evidence, was in User’s possession without confidential limitation prior to disclosure, is known or becomes known to the general public without breach of this Agreement, is received rightfully by User without confidentiality limitations from a third party, or is disclosed publicly by the Company without substantially similar confidentiality restrictions. This confidentiality obligation is to survive the termination, expiration or cancellation of this Agreement for any cause whatsoever, and to remain in force in perpetuity.
7.3 Competitive Services. User is prohibited from, and shall not, develop, market or sell any competitive service based on or derived in any way from the use of the Website or from Proprietary Information or from the benefits of know-how resulting from access to or work with the Company’s confidential information. The term “benefits of know how” means information in non-tangible form which may be retained by persons who have had access to the confidential information, including ideas, concepts, know how or techniques contained therein.
8. Trademarks. User acknowledges that the Company has acquired, and is the owner of, trademark rights in the name and word mark Talking Cranes™, and in the design marks displayed on the Website. User acknowledges that this name and these marks are famous and internationally known. User shall not, at any time or for any reason, challenge the validity of, or the Company’s ownership of, the foregoing name and marks, and User waives any rights User may have at any time to do so. All use of the foregoing name and marks by User shall inure exclusively to the benefit of the Company. All marks shown on the Website but not owned by the Company are the property of their respective owners.
9. User Qualifications.
9.2 Purchasing of products and services and registration for the Service, is available only to persons who are at least 18 years of age. Each User shall be responsible for assuring that no one under the age of 18 registers for the Service or places an order without the permission of his or her parent or guardian.
9.3 You are responsible for all use of your account under any password by any person, whether or not authorized by you, and for ensuring that all use of your account complies with this Agreement.
10. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by the Company infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website are covered by a single notification, a representative list of such works);
(c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow the Company to locate the material on the Website;
(d) the name, address, telephone number, and email address (if available) of the complaining party;
(e) a statement that the complaining party has 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
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send the Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov/ for details. Notices and counter-notices with respect to the Website should be sent firstname.lastname@example.org We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
11. Image Display and Information. We attempt to display the images featured on our website as accurately as possible. However, we cannot guarantee that your monitor's display of graphics, designs, color, texture or detail will be accurate. On occasion, the website may contain incomplete information, typographical errors, or inaccuracies as to description, pricing, promotions, sizing, fabrication, color or availability. We reserve the right to correct errors at any time without prior notice (including after your order has been placed). Prices are quoted in U.S. Dollars and are valid only in the United States. We reserve the right to change pricing at any time. It is possible that a price that is significantly lower than the actual price may be posted by the Company by mistake. In such event, the User agrees to pay any difference between the price paid and the actual price, provided User is notified of such mistake within ten (10) business days of purchase.
12. Site Transactions. We reserve the right to refuse any order placed with us or to limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card and/or orders that use the same billing and/or shipping address. We reserve the right to limit or prohibit orders that appear, in our sole judgment, to be placed by dealers, resellers or distributors. If we limit or cancel an order, we will attempt to notify you through the email, billing address or telephone number you provided when the order was placed.
13. Risk of Loss. All items purchased from the Company are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
14. Disclaimer of Warranty. THIS WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE ARE PROVIDED BY THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THIS WEBSITE; INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE; THEIR SERVERS; OR ELECTRONIC COMMUNICATIONS SENT FROM THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Limitation of Liability. Each User is solely responsible for (i) his or her use of the Service, and (ii) any damages incurred by him or her or any third party that arise from or are related to the Service. Neither the Company nor its Content Providers will be liable to User or any third party for any damages arising from or relating to this Agreement or the Service, except to the extent such damages are determined by a court of competent jurisdiction to have arisen directly from a willful breach by the Company of any of its express obligations hereunder. In the event of such a finding, the aggregate liability of the Company and its Content Providers for any damages, whether arising in contract, tort or otherwise, shall be limited to actual damages proved not to exceed the amount paid by User to the Company for the Service. Notwithstanding anything to the contrary set forth herein, neither the Company nor any of its Content Providers shall be liable for any punitive, special, indirect or consequential damages, even if the Company or its Content Providers have been advised of the possibility of such damages. No claim may be asserted by any User with respect to a product or service purchased through the Website unless written notice of such claim is received by the Company within 30 days of User’s purchase.
16. Indemnification. User shall defend, indemnify and hold the Company harmless against any loss or damage of any kind (including, without limitation, attorneys’ fees and lost revenues) arising from: (i) any and all breaches by User of this Agreement or any representation, warranty or covenant contained herein; (ii) any and all use of the Service not specifically authorized hereunder and on the Website; and (iii) any and all claims and actions against the Company by other parties to whom User allows access to the Service.
17. Additional Service Features. The Website may contain information, products, and services provided by third parties and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Users. The Company does not review or control this information or these products, services, or other web sites, and the Company does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with the Company with respect to any third party or its web site or content, or any information, products, or services provided by that third party.
18. Force Majeure. Any performance contemplated by this Agreement on the part of the Company may be cancelled by it in the case of an event or the reasonable probability of an event beyond the control of the Company, including but not limited to: strike, civil unrest, a state of emergency such as epidemic, severe and adverse weather conditions, fire, flood, earthquake, avalanche or mudslide, failure of public transportation, closure as a result of an order or directive of any federal, state, city or municipal entity or any act of God.
19. Effect of Termination. The terms of Sections 3-5 and 7-29 (inclusive) shall survive expiration or termination of this Agreement. Payments by User, which accrue or are due before termination of this Agreement, shall continue to be payable by User after the expiration or termination of this Agreement for any reason.
20. Inadequacy of Legal Remedy. User acknowledges that the Company’s legal remedies (including the recovery of damages) are not sufficient in the event of any breach by User of any provisions of this Agreement regarding the ownership, use, copying or distribution of the Service and that the Company would suffer continuing and irreparable injury to its business as a direct result of such breach. Therefore, in the event of any such breach, User consents to entry of any injunctive relief necessary to prevent or cure such breach (including temporary and preliminary relief, and relief by order of specific performance), without the posting of any bond or other security or proof of actual damages or irreparable harm.
21. Place for all Disputes. All disputes arising out of this Agreement or the performance thereof shall be determined exclusively under the laws of the State of New York, without reference to its conflict-of-law provisions, and User consents to the personal jurisdiction of the state and federal courts located in New York County, New York. User shall not initiate any legal proceeding arising out of this Agreement or the performance thereof in any jurisdiction other than in the state or federal courts located in New York County, New York. In any proceeding to enforce the Company’s rights hereunder, the Company shall be awarded all of its costs and fees, including reasonable attorneys’ fees.
22. Entire Agreement; Variation. This Agreement, and any license contained in the Company’s products, set forth the entire agreement between the Company and User with respect to the Service; provided, however, that the Company reserves the right to modify this Agreement, effective as of the date of the modification, at any time at its sole discretion. If the Company does make changes to the Agreement, the Company will post a revised Agreement on the Website. User will be responsible for regularly checking the Website for any such changes. By using the Service after the effective date of any change, User agrees that he or she will be bound by the revised Agreement.
23. Severability. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provisions shall be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement shall not be affected thereby.
24. Notices. When any notice is required or authorized hereunder, such notice shall be given in writing by recognized overnight express service, certified or registered mail, or personal delivery, in the case of the Company, to the address on this Website, with a copy to: Black & Associates, 350 Fifth Avenue, Suite 6710, New York, NY 10118, and in the case of User, to User’s attention at the address, including e-mail address, on file with the Company, or such other address as may be obtained through means believed by the Company in good faith to be accurate. A notice shall be deemed given on the date of personal delivery, one business day after being deposited with the overnight express service, or five days after being deposited in the certified or registered mail.
25. Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between the Company and User, nor any agency, joint venture or partnership relationship between the parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
26. Compliance with Law. Our business is based in the United States and is designed to comply with the laws of the United States. All Users located outside the United States must comply with all other laws applicable to their use of the Services. User understands that the Service or parts thereof may be regulated under the export control laws of the United States, as amended from time to time, and the regulations thereunder, and may require a license to be exported. The Service may not be exported or re-exported by Users in violation of such laws.
27. Waiver. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
28. Assignment. Neither this Agreement nor any of User's rights granted herein may be assigned or transferred by User, whether voluntarily or by operation of law, without the express prior written permission of the Company and any attempt to do so shall be null and void.
29. Third-Party Beneficiaries. The provisions of this Agreement relating to the rights of the Company’s Content Providers are intended for the benefit of such Content Providers, and such Content Providers, as third-party beneficiaries, shall be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to this Agreement.