1. ACCEPTANCE OF TERMS
Welcome to Mall51.com ("Mall51"). Mall51 provides its service to you, subject to the
following Terms of Service ("TOS"), which may be updated by us from time
to time without notice to you. In addition, when using particular
Mall51 services, you and Mall51 shall be subject to any posted guidelines or
rules applicable to such services which may be posted from time to time. All
such guidelines or rules are hereby incorporated by reference into the TOS.
Mall51 also may offer other services from time to time, such as Mall51 Stores, Mall51
Shops, Mall51 Auction that are governed by
different Terms of Services. These TOS do not apply to the Mall51 Stores,
Shops, Auctions or such other services.
2. DESCRIPTION OF SERVICE
Mall51 currently provides users with access to a rich collection of
resources, including, various communications tools, forums, shopping services,
personalized content and branded programming through its network of properties
(the "Service"). You also understand and agree that the Service may include
advertisements and that these advertisements are necessary for Mall51 to
provide the Service. You also understand and agree that the service may
include certain communications from Mall51, such as service announcements,
administrative messages and the Mall51.com Newsletter, and that these
communications are considered part of Mall51 membership and you will not be
able to opt out of receiving them. Unless explicitly stated otherwise, any new
features that augment or enhance the current Service, including the release of
new Mal51 properties, shall be subject to the TOS. You understand and agree
that the Service is provided "AS-IS" and that Mall51 assumes no responsibility
for the timeliness, deletion, mis-delivery or failure to store any user
communications or personalization settings.
You are responsible for obtaining access to the Service and that access may
involve third party fees (such as Internet service provider or airtime
charges). You are responsible for those fees, including those fees associated
with the display or delivery of advertisements. In addition, you must provide
and are responsible for all equipment necessary to access the Service.
Please be aware that Mall51 will not support any Service that contain adult
or mature content.
3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to: (a) provide true,
accurate, current and complete information about yourself as prompted by the
Service's registration form (such information being the "Registration Data")
and (b) maintain and promptly update the Registration Data to keep it true,
accurate, current and complete. If you provide any information that is untrue,
inaccurate, not current or incomplete, or Mall51 has reasonable grounds to
suspect that such information is untrue, inaccurate, not current or
incomplete, Mall51 has the right to suspend or terminate your account and
refuse any and all current or future use of the Service (or any portion
thereof).
4. Mall51 PRIVACY POLICY
Registration Data and certain other information about you is subject to our
Privacy Policy. For more information, see our full
privacy policy.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the
Service's registration process. You are responsible for maintaining the
confidentiality of the password and account, and are fully responsible for all
activities that occur under your password or account. You agree to (a)
immediately notify Mall51 of any unauthorized use of your password or account
or any other breach of security, and (b) ensure that you exit from your
account at the end of each session. Mall51 cannot and will not be liable for
any loss or damage arising from your failure to comply with this Section 5.
6. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound,
photographs, graphics, video, messages or other materials ("Content"), whether
publicly posted or privately transmitted, are the sole responsibility of the
person from which such Content originated. This means that you, and not Mall51,
are entirely responsible for all Content that you upload, post, email,
transmit or otherwise make available via the Service. Mall51 does not control
the Content posted via the Service and, as such, does not guarantee the
accuracy, integrity or quality of such Content. You understand that by using
the Service, you may be exposed to Content that is offensive, indecent or
objectionable. Under no circumstances will Mall51 be liable in any way for any
Content, including, but not limited to, for 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 Service.
You agree to not use the Service to:
| 1. |
upload, post, email, transmit or otherwise make available any Content
that is unlawful, harmful, threatening, abusive, harassing, tortious,
defamatory, vulgar, obscene, libelous, invasive of another's privacy,
hateful, or racially, ethnically or otherwise objectionable; |
| 2. |
harm minors in any way; |
| 3. |
impersonate any person or entity, including, but not limited to, a Mall51
official, forum leader, guide or host, or falsely state or otherwise
misrepresent your affiliation with a person or entity; |
| 4. |
forge headers or otherwise manipulate identifiers in order to disguise
the origin of any Content transmitted through the Service; |
| 6. |
upload, post, email, transmit or otherwise make available any Content
that you do not have a right to make available under any law or under
contractual or fiduciary relationships (such as inside information,
proprietary and confidential information learned or disclosed as part of
employment relationships or under nondisclosure agreements); |
| 7. |
upload, post, email, transmit or otherwise make available any Content
that infringes any patent, trademark, trade secret, copyright or other
proprietary rights ("Rights") of any party; |
| 8. |
upload, post, email, transmit or otherwise make available any
unsolicited or unauthorized advertising, promotional materials, "junk mail,"
"spam," "chain letters," "pyramid schemes," or any other form of
solicitation, except in those areas (such as shopping rooms) that are
designated for such purpose; |
| 9. |
upload, post, email, transmit or otherwise make available any material
that contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer
software or hardware or telecommunications equipment; |
| 10. |
interfere with or disrupt the Service or servers or networks connected
to the Service, or disobey any requirements, procedures, policies or
regulations of networks connected to the Service; |
| 11. |
intentionally or unintentionally violate any applicable local, state,
national or international law, including, but not limited to, regulations
promulgated by the U.S. Securities and Exchange Commission, any rules of any
national or other securities exchange, including, without limitation, the
New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any
regulations having the force of law; |
| 12. |
"stalk" or otherwise harass another; or |
| 13. |
collect or store personal data about other users. |
You acknowledge that Mall51 does not pre-screen Content, but that Mall51 and
its designees shall have the right (but not the obligation) in their sole
discretion to refuse or move any Content that is available via the Service.
Without limiting the foregoing, Mall51 and its designees shall have the right
to remove any Content that violates the TOS or is otherwise objectionable. You
agree that you must evaluate, and bear all risks associated with, the use of
any Content, including any reliance on the accuracy, completeness, or
usefulness of such Content. In this regard, you acknowledge that you may not
rely on any Content created by Mall51 or submitted to Mall51, including without
limitation information in Mall51.com Message Boards, Mall51.com Clubs, and in all
other parts of the Service.
You acknowledge and agree that Mall51 may preserve Content and may also
disclose Content if required to do so by law or in the good faith belief that
such preservation or disclosure is reasonably necessary to: (a) comply with
legal process; (b) enforce the TOS; (c) respond to claims that any Content
violates the rights of third-parties; or (d) protect the rights, property, or
personal safety of Mall51, its users and the public.
You understand that the technical processing and transmission of the
Service, including your Content, may involve (a) transmissions over various
networks; and (b) changes to conform and adapt to technical requirements of
connecting networks or devices.
7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all
local rules regarding online conduct and acceptable Content. Specifically, you
agree to comply with all applicable laws regarding the transmission of
technical data exported from the United States or the country in which you
reside.
8. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
Mall51 does not claim ownership of Content you submit or make available for
inclusion on the Service. However, with respect to Content you submit or make
available for inclusion on publicly accessible areas of the Service, you grant
Mall51 the following world-wide, royalty free and non-exclusive license(s), as
applicable:
- With respect to Content you submit or make available for inclusion on
publicly accessible areas of Mall51 Merchant Managed Pages, the license to
use, distribute, reproduce, modify, adapt, publicly perform and publicly
display such Content on the Service solely for the purposes of providing and
promoting the specific Mall51 MMP to which such Content was
submitted or made available. This license exists only for as long as you
elect to continue to include such Content on the Service and will terminate
at the time you remove or Mall51 removes such Content from the Service.
- With respect to photos, graphics, audio or video you submit or make
available for inclusion on publicly accessible area of the Service other than
Mall51 MMP, the license to use, distribute, reproduce,
modify, adapt, publicly perform and publicly display such Content on the
Service solely for the purpose for which such Content was submitted or made
available. This license exists only for as long as you elect to continue to
include such Content on the Service and will terminate at the time you remove
or Mall51 removes such Content from the Service.
- With respect to Content other than photos, graphics, audio or video you
submit or make available for inclusion on publicly accessible areas of the
Service other than Mall51 MMP the perpetual, irrevocable
and fully sub-licensable license to use, distribute, reproduce, modify, adapt,
publish, translate, publicly perform and publicly display such Content (in
whole or in part) and to incorporate such Content into other works in any
format or medium now known or later developed.
"Publicly accessible" areas of the Service are those areas of the Mall51
network of properties that are intended by Mall51 to be available to the
general public. By way of example, publicly accessible areas of the Service
would include Mall51 MMP, Auctions, Stores and Shops that are open to both members and visitors. However, publicly
accessible areas of the Service would not include portions of Mall51 MMP,
Auctions, Stores and Shops that are limited to members, Mall51 services intended for private
communication such as Mall51 Mail, or areas off of the
Mall51 network of properties such as portions of World Wide Web sites that are
accessible through Mall51.com Webring but are not hosted or served by Mall51.
9. INDEMNITY
You agree to indemnify and hold Mall51, and its subsidiaries, affiliates,
officers, agents, co-branders or other partners, and employees, harmless from
any claim or demand, including reasonable attorneys' fees, made by any third
party due to or arising out of Content you submit, post, transmit or make
available through the Service, your use of the Service, your connection to the
Service, your violation of the TOS, or your violation of any rights of
another.
10. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for
any commercial purposes, any portion of the Service, use of the Service, or
access to the Service.
11. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Mall51 may establish general practices and limits
concerning use of the Service, including without limitation the maximum number
of days that email messages, other uploaded Content
will be retained by the Service, the maximum number of email messages that may
be sent from or received by an account on the Service, the maximum size of any
email message that may be sent from or received by an account on the Service,
the maximum disk space that will be allotted on Mall51's servers on your
behalf, and the maximum number of times (and the maximum duration for which)
you may access the Service in a given period of time. You agree that Mall51 has
no responsibility or liability for the deletion or failure to store any
messages and other communications or other Content maintained or transmitted
by the Service. You acknowledge that Mall51 reserves the right to log off
accounts that are inactive for an extended period of time. You further
acknowledge that Mall51 reserves the right to change these general practices
and limits at any time, in its sole discretion, with or without notice.
12. MODIFICATIONS TO SERVICE
Mall51 reserves the right at any time and from time to time to modify or
discontinue, temporarily or permanently, the Service (or any part thereof)
with or without notice. You agree that Mall51 shall not be liable to you or to
any third party for any modification, suspension or discontinuance of the
Service.
13. TERMINATION
You agree that Mall51, in its sole discretion, may terminate your password,
account (or any part thereof) or use of the Service, and remove and discard
any Content within the Service, for any reason, including, without limitation,
for lack of use or if Mall51 believes that you have violated or acted
inconsistently with the letter or spirit of the TOS. Mall51 may also in its
sole discretion and at any time discontinue providing the Service, or any part
thereof, with or without notice. You agree that any termination of your access
to the Service under any provision of this TOS may be effected without prior
notice, and acknowledge and agree that Mall51 may immediately deactivate or
delete your account and all related information and files in your account
and/or bar any further access to such files or the Service. Further, you agree
that Mall51 shall not be liable to you or any third-party for any termination
of your access to the Service.
14. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in
promotions of, advertisers found on or through the Service, including payment
and delivery of related goods or services, and any other terms, conditions,
warranties or representations associated with such dealings, are solely
between you and such advertiser. You agree that Mall51 shall not be responsible
or liable for any loss or damage of any sort incurred as the result of any
such dealings or as the result of the presence of such advertisers on the
Service.
15. LINKS
The Service may provide, or third parties may provide, links to other World
Wide Web sites or resources. Because Mall51 has no control over such sites and
resources, you acknowledge and agree that Mall51 is not responsible for the
availability of such external sites or resources, and does not endorse and is
not responsible or liable for any Content, advertising, products, or other
materials on or available from such sites or resources. You further
acknowledge and agree that Mall51 shall not be responsible or liable, directly
or indirectly, for any damage or loss caused or alleged to be caused by or in
connection with use of or reliance on any such Content, goods or services
available on or through any such site or resource.
16. Mall51'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used
in connection with the Service ("Software") contain proprietary and
confidential information that is protected by applicable intellectual property
and other laws. You further acknowledge and agree that Content contained in
sponsor advertisements or information presented to you through the Service or
advertisers is protected by copyrights, trademarks, service marks, patents or
other proprietary rights and laws. Except as expressly authorized by Mall51 or
advertisers, you agree not to modify, rent, lease, loan, sell, distribute or
create derivative works based on the Service or the Software, in whole or in
part.
Mall51 grants you a personal, non-transferable and non-exclusive right and
license to use the object code of its Software on a single computer; provided
that you do not (and do not allow any third party to) copy, modify, create a
derivative work of, reverse engineer, reverse assemble or otherwise attempt to
discover any source code, sell, assign, sublicense, grant a security interest
in or otherwise transfer any right in the Software. You agree not to modify
the Software in any manner or form, or to use modified versions of the
Software, including (without limitation) for the purpose of obtaining
unauthorized access to the Service. You agree not to access the Service by any
means other than through the interface that is provided by Mall51 for use in
accessing the Service.
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
| a. |
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON
AN "AS IS" AND "AS AVAILABLE" BASIS. Mall51 EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. |
| b. |
Mall51 MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR
REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE
SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE
SOFTWARE WILL BE CORRECTED. |
| c. |
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. |
| d. |
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
Mall51 OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY
STATED IN THE TOS. |
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Mall51 SHALL NOT BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA
OR OTHER INTANGIBLE LOSSES (EVEN IF Mall51 HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE
SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES
RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED
OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv)
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER
MATTER RELATING TO THE SERVICE.
19. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY
TO YOU.
20. SPECIAL ADMONITION FOR SERVICES RELATING TO FINANCIAL MATTERS
If you intend to create or join any service, receive or request any news,
messages, alerts or other information from the Service concerning companies,
stock quotes, investments or securities, please read the above Sections 17 and
18 again. They go doubly for you. In addition, for this type of information
particularly, the phrase "Let the investor beware" is apt. The Service is
provided for informational purposes only, and no Content included in the
Service is intended for trading or investing purposes. Mall51 and its licensors
shall not be responsible or liable for the accuracy, usefulness or
availability of any information transmitted or made available via the Service,
and shall not be responsible or liable for any trading or investment decisions
made based on such information.
21. NOTICE
Notices to you may be made via either email or regular mail. The Service
may also provide notices of changes to the TOS or other matters by displaying
notices or links to notices to you generally on the Service.
22. TRADEMARK INFORMATION
Mall51.com, the Mall51.com logo, and other Mall51.com logos and
product and service names are trademarks of EGB Communications. Inc. (the "Mall51 Marks").
Without Mall51's prior permission, you agree not to display or use in any
manner, the Mall51 Marks.
23. COPYRIGHTS and COPYRIGHT AGENTS
Mall51 respects the intellectual property of others, and we ask our users to
do the same. If you believe that your work has been copied in a way that
constitutes copyright infringement, or your intellectual property rights have
been otherwise violated, please provide Mall51's Copyright Office the following
information:
- an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that
you claim has been infringed;
- a description of where the material that you claim is infringing is
located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed
use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above
information in your Notice is accurate and that you are the copyright or
intellectual property owner or authorized to act on the copyright or
intellectual property owner's behalf.
Mall51 Copyright Office for Notice of claims of copyright or other intellectual property
infringement can be reached as follows:
By mail:
EGB Communications, Inc.
Copyright Office
c/o Mall51.com Inc.
70 River Street
Andover, MA 01810
By phone: (978) 475 4999
By email: support@egblive.com
24. GENERAL INFORMATION
The TOS constitute the entire agreement between you and Mall51 and govern
your use of the Service, superceding any prior agreements between you and
Mall51. You also may be subject to additional terms and conditions that may
apply when you use affiliate services, third-party content or third-party
software. The TOS and the relationship between you and Mall51 shall be governed
by the laws of the State of Delaware without regard to its conflict of law
provisions. You and Mall51 agree to submit to the personal and exclusive
jurisdiction of the courts located in Delaware. The failure of Mall51 to exercise or enforce any right or provision
of the TOS shall not constitute a waiver of such right or provision. If any
provision of the TOS is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor to give
effect to the parties' intentions as reflected in the provision, and the other
provisions of the TOS remain in full force and effect. You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of or related to use of the Service or the TOS must be filed
within one (1) year after such claim or cause of action arose or be forever
barred.
The section titles in the TOS are for convenience only and have no legal or
contractual effect.
25. VIOLATIONS
Please report any violations of the TOS to our
Customer Care group.
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