ACCEPTABLE USE POLICY
Media Breakaway, LLC, and its subsidiaries, divisions and related web sites (hereinafter collectively referred to as “Media Breakaway”) Acceptable Use Policy ("AUP") describes the proper kinds of conduct and prohibited uses of Media Breakaway’s services (the "Services"), as described and subscribed to pursuant to the applicable Terms and Conditions. The AUP is not exhaustive and Media Breakaway reserves the right to modify the AUP at any time, effective upon posting of the modified AUP to www.mediabreakaway.com and its related websites. By registering for and/or using the Services, and thereby accepting the terms and conditions of the Agreement, you agree to abide by the AUP as modified from time to time. If any modification is unacceptable to you, you shall cease using the Site and the Services. Your continued access to the Site or the Services will indicate you have accepted the change.
Any violation of the AUP may result in the suspension or termination of your account and such other action as Media Breakaway deems appropriate. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SITE OR THE SERVICES.
1. YOUR GENERAL RESPONSIBILITIES
You must be an individual person, at least 13 years old to use the Site and to register for the Services. By using the Services, you represent and warrant that you are at least 13 years old.
The Services enable you to develop and display a Web site through which you can interact with users of the Internet and retrieve and send vast amounts of information. It also allows for the deploying of email to promote the sale of your product or services. Generally, Media Breakaway will not actively monitor, censor, or directly control any content that is or will be displayed on your Web site(s) or information that you collect or use through your Web site(s). Media Breakaway, however, provides the Services with the goals of (a) ensuring security, reliability and privacy of the Services and the users of the Services, (b) maintaining an image and reputation of Media Breakaway as a responsible provider of the Services, (c) preserving the value of Internet resources as a conduit for free expression, (d) encouraging the responsible use of Internet resources and discouraging degrading, libelous or illegal uses of such resources. Consequently, Media Breakaway expects you, and all other users of the Services, to take responsibility in using the Internet with courtesy and responsibility, and be familiar with and to practice good Internet etiquette, in furtherance of the above stated goals.
VIOLATION OF ANY OF THESE GUIDELINES IS STRICTLY PROHIBITED AND MAY RESULT IN THE IMMEDIATE TERMINATION OR SUSPENSION OF THE SERVICES YOU RECEIVE FROM MEDIA BREAKAWAY. YOU WILL REMAIN SOLELY LIABLE AND RESPONSIBLE FOR YOUR USE OF THE SERVICES AND ANY AND ALL CONTENT THAT YOU DISPLAY, UPLOAD, DOWNLOAD OR TRANSMIT THROUGH THE USE OF THE SERVICES. "CONTENT" INCLUDES, WITHOUT LIMITATION, YOUR E-MAIL, WEB PAGES, PERSONAL HOME PAGES, AND DOMAIN NAMES.
2. ILLEGAL OR HARMFUL USE
You may use the Services only for lawful purposes. Transmission, distribution, sale or storage of any material in violation of any applicable law, regulation, or the AUP is prohibited. The following non-exhaustive list details the kinds of illegal or harmful conduct that are prohibited. Media Breakaway reserves the rights to restrict or prohibit any and all uses of the Services or content on your Web site(s) and to remove such materials from its servers that Media Breakaway determines in its sole discretion is harmful to its servers, systems, network, reputation, good will, other Media Breakaway customers or any third party.
Infringement. Infringement of intellectual property rights or other proprietary rights including, without limitation, material protected by copyright, trademark, patent, trade secret, or other intellectual property right used without proper authorization. Infringement may result from, among other activities, the unauthorized copying and posting of pictures, logos, software, articles, musical works, and videos.
Offensive Materials. Transmission, disseminating, sale, storage or hosting material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable.
Export Violations. Posting or sending of software or technical information in violation of U.S. export laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce.
Harmful Content. Disseminating or hosting harmful content including, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information.
Fraudulent Conduct. Offering or disseminating fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes), or furnishing false data on any signup form, contract or online application or registration, or the fraudulent use of any information obtained through the use of the Services, including without limitation use of credit card numbers.
If User is a publisher, User shall not authorize or encourage any third party to generate fraudulent impressions of or fraudulent clicks on any advertisement, including but not limited to, through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software. Users who are publishers may list assets including but not limited to mobile sites, applications, and device platforms ("Mobile Properties") and make them available for advertisement. Users who are publishers hereby grant Media Breakaway the right to access, index, store and cache requests made from User's mobile websites (“Mobile Property”) to the Services, including by automated means. Users who are publishers allow Media Breakaway to access publishers’ applications to serve Media Breakaway’s personalized advertisements. Users who are advertisers may produce content including but not limited to text links, banners, videos, and graphics ("Advertisements") for display on a publisher's Mobile Property. User agrees to comply with the technical specifications provided by Media Breakaway to enable proper display of the Advertisements in connection with the Services.
3. SYSTEM AND NETWORK SECURITY AND INTEGRITY
Violations of Media Breakaway’s or any third party's server, system or network security through the use of the Services are prohibited, and may result in criminal and civil liability. Media Breakaway may investigate incidents involving such violations. Media Breakaway may involve and cooperate with law enforcement if a criminal violation is suspected. Examples of server, system or network security violations include, without limitation, the following:
Hacking. Unauthorized access to or use of data, systems, servers or networks, including any attempt to probe, scan or test the vulnerability of a system, server or network or to breach security or authentication measures without express authorization of the owner of the system, server or network.
Interception. Unauthorized monitoring of data or traffic on any network, server, or system without express authorization of the owner of the system, server, or network.
Intentional Interference. Interference with service to any user, host or network including, without limitation, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system, broadcast attacks and any activity resulting in the crash of a host. Intentional interference also means the use of any kind of program/script/command, or send messages of any kind, designed to interfere with a user's terminal session, via any means, locally or by the Internet.
Falsification of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.
Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on the Services such as timing out.
Failure to Safeguard Accounts. Failing to prevent unauthorized access to accounts, including any account passwords.
Media Breakaway is not responsible for the conduct, whether online or offline, of any User of the Site or of the Service and is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any site or combination thereof, including injury or damage to Users’ or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will Media Breakaway or any of its affiliates, advertisers, promoters or distribution partners be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Site or the Services. The Site and the Services are provided “AS-IS” and Media Breakaway expressly disclaims any warranty of merchantability, fitness for a particular purpose or non-infringement. You assume all risk when using the Services.
The Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You hereby acknowledge and agree that Media Breakaway is the owner of highly valuable proprietary information, including, but not limited to its technology and templates (collectively, “Confidential Information”). Media Breakaway owns and hereby retains all proprietary rights in the Services and the Site, including but not limited to, all Confidential Information.
You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) Confidential Information or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Services, without first obtaining the prior written consent of the owner of such proprietary rights.
You may not distribute, publish or send any of the following types of e-mail:
Unsolicited promotions, advertising or solicitations (commonly referred to as "spam") that is not compliant with the CAN-SPAM Act of 2003, including, without limitation, commercial advertising and informational announcements to those email addresses who have requested that their email addresses be opted out.
Commercial promotions, advertising, solicitations, or informational announcements that contain false or misleading information in any form. Harassing e-mail, whether through language, frequency, or size of messages.
Malicious e-mail, including without limitation "mailbombing" (flooding a user or Web site with very large or numerous pieces of mail) or "trolling" (posting outrageous messages to generate numerous responses).
E-mails containing forged or falsified information in the header (including sender name and routing information), or any other forged or falsified information.
Third Party Links. Links to third party web sites should not be inserted in emails without the direct or indirect permission of the third party, and your email should conspicuously notify the recipient that the link is to a third party over which you have no control or operation.
In addition, you may not use Media Breakaway’s mail server or another Web site's mail server to relay mail without the express permission of the account holder or the Web site. Posting the same or similar message to one or more newsgroups, message boards, blogs, online discussion groups, etc., (excessive cross-posting or multiple-posting) also is explicitly prohibited.
5. INSTANT MESSAGING and CHAT Services
Inappropriate use or misuse of instant messaging or chat applications on the Media Breakaway network is not acceptable. Examples include: Sending instant messages that contain threatening, abusive, illegal or libelous material. INDIRECT OR ATTEMPTED VIOLATIONS OF THE AUP, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, WILL BE CONSIDERED VIOLATIONS OF THE AUP BY YOU. Any questions regarding this AUP should be directed to email@example.com.
6. Disclaimer of Warranty.
If you are a publisher, User specifically acknowledges and agrees that Media Breakaway has no control over (and is merely a passive conduit with respect to) any content that may be submitted or published by any advertiser, and that User is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable to User, and (ii) if User is an advertiser, User specifically acknowledges and agrees that Media Breakaway has no control over any content that may be available or published on any publisher Site (or otherwise), and that User is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable to User.
THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MEDIA BREAKAWAY PROVIDES THE SITE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE SITE (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MEDIA BREAKAWAY DOES NOT WARRANT THAT YOUR USE OF THE SITE AND THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SITE OR THE SERVICES WILL BE CORRECTED. MEDIA BREAKAWAY DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SITE OR THE SERVICES.
7. Limitation of Liability.
Incidental Damages and Aggregate Liability.
IN NO EVENT WILL MEDIA BREAKAWAY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF MEDIA BREAKAWAY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL MEDIA BREAKAWAY’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE NET AMOUNT PAID BY MEDIA BREAKAWAY TO USER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM, OR, IF NO AMOUNT HAS BEEN PAID, THE AMOUNT OF $20USD.
No Liability for non-Media Breakaway Actions.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MEDIA BREAKAWAY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF THE SERVICES . THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
You agree to indemnify, defend and hold harmless Media Breakaway, its officers, members, managers, directors and employees, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of or from (a) your use of or inability to use the Site or Services (b) your violation of any terms of this Agreement or your violation of any rights of a third party, or (c) your violation of any applicable laws, rules or regulations. Media Breakaway reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Media Breakaway in asserting any available defenses.
9. Term and Termination.
This Agreement will become effective upon your acceptance of the Agreement by your use of the Site or the Services and will remain in effect in perpetuity unless terminated hereunder. Either you or Media Breakaway may terminate your account at any time, for any reason or no reason, without explanation, effective upon sending written notice to the other party. Media Breakaway reserves the right to immediately suspend or terminate your access to any of the Services, without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and any other records at any time at our sole discretion. Any fees paid hereunder are non-refundable and non-cancelable. You may terminate your account by following the instructions on the Site, or by sending a notice of cancellation to: care@Media Breakaway.com. Upon termination of the User’s account, User’s right to use the Service will immediately cease and User will remove all Media Breakaway code from User’s Mobile Properties. Following any termination of any Registered User’s use of the Service, Media Breakaway reserves the right to send a notice thereof to other Registered Users which whom you have corresponded. The termination or expiration of this Agreement shall not affect any of the provisions of this Agreement which are expressly or by implication to come into or continue in force after such termination or expiration,
10.. Representations and Warranties.
If User is a publisher, User represents and warrants to Media Breakaway that (i) User is the owner of each Mobile Property User designates in connection with the use of Services or that User is legally authorized to act on behalf of the owner of such Mobile Property for the purposes of this Agreement, and (ii) User has all necessary right, power and authority to enter into this Agreement and to perform the acts required of User hereunder. User further represents and warrants to Media Breakaway that each of User's Mobile Properties and any material displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (c) are not hate-related in content. If User is an advertiser, User represents and warrants to Media Breakaway that (i) User is the owner of each advertisement User designates in connection with the use of Services or that User is legally authorized to act on behalf of the owner of such advertisement for the purposes of this Agreement, and (ii) User has all necessary right, power and authority to enter into this Agreement and to perform the acts required of User hereunder. User further represents and warrants to Media Breakaway that each of User's advertisements and any material displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (c) are not hate-related in content and (d) are free from viruses and any other contaminants of any nature whatsoever.
18. General Provisions
Controlling Law and Jurisdiction.
You agree that Colorado law (without giving effect to its conflicts of law principles) will govern this Agreement, the Site and the Services and that any dispute arising out of, from, or relating to this Agreement, the Site or the Services will be subject to the exclusive jurisdiction and venue of the federal and state courts located in the County of Denver, District of Colorado, where disputes by either Party are not subject to binding arbitration under existing law. You acknowledge and agree that any violation of this Agreement may cause Media Breakaway irreparable harm, and therefore agree that Media Breakaway will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Media Breakaway may have for a breach of this Agreement.
Binding Arbitration. If you and The Company are unable to resolve a Dispute through informal negotiations, either you or The Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. The arbitration shall take place in in the City of Denver, Colorado. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, The Company will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and The Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Restrictions. You and The Company agree that any arbitration shall be limited to the Dispute between The Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration. You and The Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or The Company’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
19. No Third Party Beneficiaries.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
© 2016 Media Breakaway, LLC. All rights reserved
Updated: October 28, 2016