This agreement (“Agreement”) is entered into between Dalcott Corp. d/b/a TREC® (“Us”, “We” or “Our”) and you (“You” or “Your”). In order to use the service (“Site”), You must accept the terms and conditions stated below.
1. Description of the Site.
9. Termination of Your Account. a. Termination by You. You may cancel Your use of the Site at any time by providing notice to Us. b. Termination by Us. You understand and agree that We may immediately terminate Your right to use the Site without notice to You under certain circumstances, including: i. breaches of this Agreement or Other Agreements; ii. requests by law enforcement, government agencies or court order; iii. security and technical issues or problems; iv. non-payment of any fees owed by You; or v. extended periods of inactivity. c. Effects of Termination. You understand and agree that We will not be liable to You or any third party for any termination of Your right to use the Site. Upon termination, We may remove or delete any comments, reviews, ratings, or other information You have provided. We will have no further obligation to grant You any access to or use of the Site. 10. Links and Dealings with Outside Parties. We have no control over any links or other resources available to You via the Site. Your interaction with any third parties via the Site are solely between You and such parties. We are not responsible for the availability of such external resources, and do not endorse any content, advertising, products, or other materials on or available from such resources. We do not warrant any such third-party providers or any of their products or services. Any exchange of data or other interaction between You and a third-party provider, and any purchase or use by You of any product or service offered by such third-party provider, is solely between You and such third-party provider. You agree that We will not be liable, directly or indirectly for any loss or damage of any kind or nature arising out of or related to, or incurred in reliance upon, any such interactions, links, resources or content. 11. Your Indemnification of Us. You will indemnify, defend, and hold Us harmless from and against all liabilities, damages, and costs (including, but not limited to, reasonable attorneys’ fees and all settlement costs) arising out of or related to a third party claim regarding: (i) Your (or anyone using Your User Account) infringement or misappropriation any Proprietary Rights; (ii) any of Your acts or omissions, including, but nor limited to, Your misrepresentation of any information You provide to Us; (iii) anything arising out of or related to Your Content; or (iv) Your use of the Site in violation of this Agreement (including, but not limited to, Your breach of this Agreement). We reserve the right, at Your expense, to assume the defense (if applicable) and control of any matter relating to Us, and You shall provide reasonable assistance with respect to such claims. You will not settle any matter relating to Us without Our prior written consent.
12. Representations and Warranties. a. Your Representations and Warranties. You represent and warrant that: i. All of the information You provide to Us is correct; ii. You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You under this Agreement; iii. You will not harasses or causes distress or inconvenience to any person via the transmission of obscene or offensive material of any kind; iv. You will not disrupt the normal flow of any access to, or use of, the Site; v. You will not use the Site or any of the Services in a manner not permitted under this Agreement or in a manner that interferes with any websites or network resources operated by Us or any third-party; vi. You agree to comply with all applicable tax laws regarding the purchase of any materials obtained through the Site, and that compliance with such tax laws is Your responsibility and that of the providers of such materials, and not Our responsibility; and vii. You agree to comply with all local rules regarding online conduct. b. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: i. YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN“AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SITE OR TO ANY INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY PRODUCTS OR SERVICES OFFERED VIA THIS SITE; ii. WE MAKE NO WARRANTY THAT: (i) THE SITE WILL MEET YOUR REQUIREMENTS; (ii) THE SITE WILL BE TIMELY, SECURE, ERROR-FREE OR OPERATE IN AN UNINTERRUPTED FASHION; (iii) ANYTHING AVAILABLE THROUGH OR OBTAINED FROM THE SITE WILL BE ACCURATE, RELIABLE, OR USEFUL; AND (iv) ANY ERRORS WILL BE CORRECTED; iii. ANY INFORMATION, PRODUCTS, SERVICES, OR OTHER ITEMS OBTAINED VIA THE SITE ARE PROVIDED TO YOU SOLELY AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY HARM TO YOU OR OTHERS, DAMAGE TO YOUR COMPUTER, SYSTEMS, OR OTHERWISE, OR LOSS OF DATA THAT RESULTS FROM ANYTHING OBTAINED VIA THE SITE; AND iv. ONLY THE LIMITATIONS WHICH ARE ALLOWED AND LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU. OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW; AND v. PRODUCT INFORMATION ACCESSED THROUGH THIS SITE IS PROVIDED BY THE PRODUCT’S PRODUCER, SUPPLIER, OR MANUFACTURER. YOU UNDERSTAND THAT PRODUCERS, SUPPLIERS, AND MANUFACTURERS MAY ALTER LABELS SUCH THAT ACTUAL PRODUCT PACKAGING AND MATERIALS MAY CONTAIN DIFFERENT INFORMATION THAN THAT SHOWN ON THIS SITE. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY PRODUCT INFORMATION. YOU MAY NOT RELY SOLELY ON THE INFORMATION PRESENTED. YOU MUST READ LABELS, WARNINGS, AND DIRECTIONS BEFORE USING ANY PRODUCT. WE ASSUME NO LIABILITY FOR ANY INACCURACIES ABOUT PRODUCTS. YOU UNDERSTAND AND AGREE THAT CUSTOMER REVIEWS AND OTHER USER GENERATED CONTENT IS PROVIDED SOLELY FOR INFORMATIONAL PURPOSES AND IS NOT PROVIDED BY US. CUSTOMER REVIEWS ARE SOLELY THE INDIVIDUAL REVIEWER’S VIEWS. vi. PRODUCT PRICING. PARTICIPATING MERCHANTS ARE SUBJECT TO CHANGE, AND ARE NOT GUARANTEED TO BE AVAILABLE AT ALL TIMES. TREC DOES NOT ASSUME RESPONSIBILITY OR LIABILITY FOR THE ACTIONS, PRODCUCTS, LOCATIONS OR CONTENT OF ANY MERCHANT. YOU ACKNOWLEDGE AND AGREE THAT TREC IS NOT RESPONSIBLE FOR THE PRICING OF THE PRODUCTS, AND THE MERCHANTS ARE SOLELY RESPONSIBLE FOR SETTING THE PRICES FOR PRODUCTS AND REVIEWING THEIR ADVERTISING SECTION ON TREC FOR THE ACCURACY OF ITS CONTENT AND PRICING MAY CHANGE AT ANY TIME WITHOUT NOTICE. 13. Limitation of Liabilities. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE (INCLUDING ALL OF OUR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND LICENSORS) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF OBTAINING SUBSTITUTE GOODS OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (v) ANY INFORMATION, PRODUCT, OR SERVICE YOU OBTAIN THROUGH THE SITE; OR (vi) ANY OTHER MATTER RELATING TO THE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 14. Copyright Disputes. We are dedicated to operating in accordance with the U.S. Copyright Law and ask You to comply as well. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides owners of copyrighted material who suspect that their rights under U.S. Copyright Law have been violated with certain remedies. One such remedy is contacting the Internet service provider’s designated agent to report suspected infringements that appear on Web pages hosted by that Internet service provider. a. If We receive a notification of suspected copyright infringement, and assuming the notification satisfies the requirements of the DCMA (discussed below), We may remove or prohibit access to such materials. However, You may submit to Us a counter-notice if you believe such notice of suspected copyright infringement was mistakenly filed. b. We advise You to seek legal counsel if: (i) You believe Your copyrights have been infringed, or (ii) if a notice of copyright infringement has been filed against You. We will not be involved as a party to disputes over alleged copyright infringement and you agree to indemnify, defend and hold us harmless from and against any costs, damages or expenses (including reasonable attorney fees) We incur arising out of or related to any alleged or actual infringement involving You. c. We reserve the right to terminate Your account or remove any content if We, in our sole discretion, believe the DMCA notification meets the criteria listed below. d. Notification of Claimed Copyright Infringement. i. If You believe Your copyrights have been infringed because of material appearing on a web page We host, you must file Your claim of infringement with Our designated agent via mail at the address below. By Mail: TREC P.O. Box 664 Cross River, New York 10518 Alternatively, You may email Us with Your complaint of claimed infringement. By Email: email@example.com ii. You must provide the following information in your written complaint to us in order for it to be valid under the DMCA: 1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. 3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. 4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. 5. 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. 6. 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. iii. Elements 1-6 above are taken directly from 17 U.S.C. 512(c)(3). Please consult the DMCA for additional details on the information necessary for valid notification. iv. Please note: Misrepresentations and false accusations of copyright infringement may subject You to damages including, but not limited to, fees incurred in blocking material, court costs, and attorneys’ fees. e. Counter-notification response to Claims of Copyright Infringement. You may file a counter-notification with Our designated agent. All such responses must be submitted to the address listed above in this section and must contain the following: i. A physical or electronic signature of the subscriber. ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. v. Elements (i) – (iv) above are taken directly from 17 U.S.C. 512(g)(3). Please consult the DMCA for additional details on the information necessary for valid notification. vi. Please note: Misrepresentations and false responses to claims of copyright infringement may subject You to damages including, but not limited to, fees incurred in blocking material, court costs, and attorneys’ fees. vii. As provided by the DMCA, after receipt of a valid counter-notification, We may restore or re-enable access to removed material. f. Other Violations. Please contact us at any of the above addresses to report any other actual or potential violation of the Terms. 15. General Terms. a. Entire Agreement. Except for the Other Agreements, this Terms of Site constitutes the entire agreement between Us and You regarding the Site and supersedes any prior agreements between Us and You with respect to the Site. b. Choice of Law. You and We agree that this Agreement will be governed by the law of the State of New York, USA, without regard to conflicts of law principles or provisions. c. No Waiver. Our failure or Your failure to exercise or enforce any right or provision of this Agreement or the Other Agreements shall not constitute a waiver of the right or provision. If any provision of this Agreement or the Other Agreements is found by a court of competent jurisdiction to be invalid, then You agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement and the Other Agreements remain in full force and effect. d. Force Majeure. Performance by any party of any obligation hereunder shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event, and prompt notice thereof has been given to the other party. If any party fails to perform any duty or obligation hereunder as a result of a force majeure event, such party shall be required to fulfill its obligations hereunder within a reasonable time after the force majeure event ceases to exist. e. No Assignment By You. You agree that Your rights under this Agreement are personal to You, and that You do not have the right to assign, transfer or convey (by operation of law or otherwise) this Agreement or any right or interest under this Agreement herein in whole or in part without Our prior written consent. Any attempt to do so shall be null and void. f. We May Assign the Agreement. You understand that We may transfer ownership or operation of all or any part of the Site to another person, and You agree that if We do so We may assign Our rights and obligations under this Agreement to another person. You will remain bound by all of the terms and conditions of this Agreement following any such assignment by Us. g. Our Right to Amend the Agreement. We have the right to amend the Agreement at any time without notice to You. You acknowledge and agree that if You use the Site following such an amendment, You will automatically be bound by all of the terms in the amended Agreement as if those terms were in the original Agreement accepted by You. h. Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement, including, but not limited to, Sections 3.b, 3.c, 3.e, 4, 5, 7.a, 8.c, 9, 10, 11, 12.b, 13, and 14. i. Export Control Notice. Regardless of any disclosure made by You to Us of an ultimate destination or use of the Site or any Services, or other materials, products, goods, or services You obtain through the Site, You acknowledge and agree that such may be subject to the United States export control laws. You acknowledge Your exclusive obligation to ensure that Your obtaining and use of any Services, materials, products, goods, or services are in compliance with the United States export control laws.