Terms
& Conditions
MyNGE.com
Terms of Use Agreement
February 28, 2008
MyNGE, (“MyNGE” or “we”)
operates MyNGE.com, which is a social networking service that allows Members to
create unique personal profiles online in order to find and communicate with
old and new friends. The services offered by MyNGE include any
MyNGE-branded URL (the "MyNGE Website"), the MyNGE instant messaging
service, the MyNGE application developer service and other features (for
example, music and video embedded players), MyNGE mobile services, and any
other features, content, or applications offered from time to time by MyNGE in
connection with MyNGE’s business (collectively, the "MyNGE
Services"). The MyNGE Services are hosted in the United States.
This
Terms of Use Agreement ("Agreement") sets forth the legally binding
terms for your use of the MyNGE Services. By using the MyNGE Services,
you agree to be bound by this Agreement, whether you are a "Visitor"
(which means that you simply browse the MyNGE Website, including through a
mobile device, or otherwise use the MyNGE Services without being registered) or
you are a "Member" (which means that you have
registered with MyNGE). The term "User" refers to a Visitor or
a Member. You are only authorized to use the MyNGE Services (regardless of
whether your access or use is intended) if you agree to abide by all applicable
laws and the terms of this Agreement. Please read this Agreement and
save it. If you do not agree to be bound by this Agreement and to follow all
applicable laws, you should leave the MyNGE Website and discontinue use of the
MyNGE Services immediately. If you wish to become a Member, communicate
with other Members and/or make use of the MyNGE Services, you must read this
Agreement and indicate your acceptance during the registration process.
This
Agreement includes MyNGE's policy for acceptable use of the MyNGE Services and
Content (as defined in Section 6.1 below) posted on or through the MyNGE
Services and your rights, obligations and restrictions regarding your use of
the MyNGE Services and Content posted on or through the MyNGE Services.
In order to participate in certain MyNGE Services, you may be notified
that you are required to download software or content and/or agree to additional
terms and conditions from MyNGE. Unless otherwise provided by the
additional terms and conditions applicable to the MyNGE Services in which you
choose to participate, those additional terms are hereby incorporated into this
Agreement. You may receive a copy of this Agreement by emailing us at: admin@MyNGE.com, Subject: Terms of
Use Agreement.
MyNGE
may modify this Agreement from time to time and such modification shall be
effective upon posting by MyNGE on the MyNGE Website. Your continued use of the MyNGE Services after MyNGE posts a
revised Agreement signifies your acceptance of the revised Agreement. It
is therefore important that you review this Agreement regularly to ensure you
are updated as to any changes.
Please
choose carefully the information you post on or through the MyNGE Services and
that you provide to other Users. Your MyNGE profile may not include any
form of Prohibited Content, as outlined in Section 8 below. Despite this
prohibition, information, materials, products or services provided by other
MyNGE Members (for instance, in their profile) may, in whole or in part, be
unauthorized, impermissible or otherwise violate this Agreement, and MyNGE
assumes no responsibility or liability for this material. If you become
aware of misuse of the MyNGE Services by any person, please click on the
"Contact MyNGE” or the “Report Abuse” link at the bottom of the MyNGE
Website pages.
MyNGE
reserves the right, in its sole discretion, to reject, refuse to post or remove
any posting (including private messages) by you, or to deny, restrict, suspend,
or terminate your access to all or any part of the MyNGE Services at any time,
for any or no reason, with or without prior notice or explanation, and without
liability. MyNGE expressly reserves the right to remove your profile
and/or deny, restrict, suspend, or terminate your access to all or any part of
the MyNGE Services if MyNGE determines, in its sole discretion,
that you have violated this Agreement or pose a threat to MyNGE and/or
its Users.
1. Eligibility. Use of the MyNGE
Services and registration to be a Member for the MyNGE Services (“Membership”)
is void where prohibited. By using the MyNGE Services, you represent and
warrant that (a) all registration information you submit is truthful and
accurate; (b) you will maintain the accuracy of such information; (c) you are
14 years of age or older; and (d) your use of the MyNGE Services does not
violate any applicable law or regulation. Your profile may be deleted and
your Membership may be terminated without warning, if we believe that you are
under 14 years of age, if we believe that you are
under 18 years of age and you represent yourself as 18 or older, or if we
believe you are over 18 and represent yourself as under 18.
2. Term. This Agreement, and any posted revision to this Agreement, shall
remain in full force and effect while you use the MyNGE Services or are a
Member. You may terminate your Membership at any time, for any reason, by
following the instructions on the Member's Account Settings page. MyNGE
may terminate your Membership at any time, for any or
no reason, with or without prior notice or explanation, and without liability.
Even after Membership is terminated, this Agreement will remain in
effect, including Sections 5-17.
3. Fees. You acknowledge that
MyNGE reserves the right to charge for any portion of the MyNGE Services and to
change its fees (if any) from time to time in its discretion. If MyNGE
terminates your Membership because you have breached the Agreement, you shall
not be entitled to the refund of any unused portion of fees or payments (if
any).
4. Password. When you sign up to
become a Member, you will also be asked to choose a password. You are entirely
responsible for maintaining the confidentiality of your password. You
agree not to use the account, username, or password of another Member at any
time or to disclose your password to any third party. You agree to notify
MyNGE immediately if you suspect any unauthorized use of your account or access
to your password. You are solely responsible for any and all use of your
account.
5. Use by Members. The MyNGE Services
are for the personal use of Members and may be used for promotional purposes as
well, but direct commercial endeavors may only be used if they are specifically
endorsed or authorized by MyNGE. MyNGE reserves the right to remove
commercial content in its sole discretion. Illegal and/or unauthorized
use of the MyNGE Services, including collecting usernames, user id numbers,
and/or email addresses of Members by electronic or other means for the purpose
of sending unsolicited email or unauthorized framing of or linking to the MyNGE
Website, or employing third party promotional sites or software to promote
profiles for money, is prohibited. Commercial advertisements, affiliate
links, and other forms of unauthorized solicitation may be removed from Member
profiles without notice or explanation and may result in termination of Membership
privileges. MyNGE reserves the right to take
appropriate legal action for any illegal or unauthorized use of the
MyNGE Services.
6. Proprietary Rights in
Content on MyNGE.
6.1
MyNGE
does not claim any ownership rights in the text, files, images, photos, video,
sounds, musical works, works of authorship, applications, or any other
materials (collectively, "Content") that you post on or through the
MyNGE Services. After posting your Content to the MyNGE Services, you
continue to retain any such rights that you may have in your Content, subject
to the limited license herein. By displaying or publishing
("posting") any Content on or through the MyNGE Services, you hereby
grant to MyNGE a limited license to use, modify, delete from, add to, publicly
perform, publicly display, reproduce, and distribute such Content solely on or
through the MyNGE Services, including without limitation distributing part or
all of the MyNGE Website in any media formats and through any media channels,
except Content marked “private” will not be distributed outside the MyNGE
Website. This limited license does not grant MyNGE the right to sell or
otherwise distribute your Content outside of the MyNGE Services. After
you remove your Content from the MyNGE Website we will cease distribution as
soon as practicable, and at such time when distribution ceases, the license
will terminate. If after we have distributed your Content outside the
MyNGE Website you change the Content’s privacy setting to “private,” we will cease
distribution of such “private” Content outside the MyNGE Website as soon as
practicable after you make the change.
6.2
The
license you grant to MyNGE is non-exclusive (meaning you are free to license
your Content to anyone else in addition to MyNGE), fully-paid and royalty-free
(meaning that MyNGE is not required to pay you for the use on the MyNGE
Services of the Content that you post), sublicensable (so that MyNGE is able to
use its affiliates, subcontractors and other partners such as Internet content
delivery networks and wireless carriers to provide the MyNGE Services), and
worldwide (because the Internet and the MyNGE Services are global in reach).
6.3
You
represent and warrant that: (i) you own the Content posted by you on or through
the MyNGE Services or otherwise have the right to grant the license set forth
in this Section 6, and (ii) the posting of your Content on or through the MyNGE
Services does not violate the privacy rights, publicity rights, copyrights,
contract rights or any other rights of any person or entity. You agree to
pay for all royalties, fees, and any other monies owing any person or entity by
reason of any Content posted by you on or through the MyNGE Services.
6.4
The
MyNGE Services contain Content of MyNGE ("MyNGE Content").
MyNGE Content is protected by copyright, trademark, patent, trade secret
and other laws, and MyNGE owns and retains all rights in the MyNGE Content and
the MyNGE Services. MyNGE hereby grants you a limited, revocable,
nonsublicensable license to reproduce and display the MyNGE Content (excluding
any software code) solely for your personal use in connection with viewing the
MyNGE Website and using the MyNGE Services.
6.5
The
MyNGE Services contain Content of Users and other MyNGE licensors. Except
as provided within this Agreement, you may not copy, modify, translate,
publish, broadcast, transmit, distribute, perform, display, or sell any Content
appearing on or through the MyNGE Services.
6.6
MyNGE
performs technical functions necessary to offer the MyNGE Services, including
but not limited to transcoding and/or reformatting Content to allow its use
throughout the MyNGE Services.
7. Content Posted.
7.1
MyNGE
may reject, refuse to post or delete any Content for any or no reason,
including Content that in the sole judgment of MyNGE violates this Agreement or
which may be offensive, illegal or violate the rights of any person or entity,
or harm or threaten the safety of any person or entity. MyNGE assumes no
responsibility for monitoring the MyNGE Services for inappropriate Content or
conduct. If at any time MyNGE chooses, in its sole discretion, to monitor
the MyNGE Services, MyNGE nonetheless assumes no responsibility for the
Content, no obligation to modify or remove any inappropriate Content, and no
responsibility for the conduct of the User submitting any such Content.
7.2
You
are solely responsible for the Content that you post on or through any of the
MyNGE Services, and any material or information that you transmit to other
Members and for your interactions with other Users.
8. Content/Activity
Prohibited.
The following are examples of the kind of Content that is illegal or prohibited
to post on or through the MyNGE Services. MyNGE reserves the right to
investigate and take appropriate legal action against anyone who, in MyNGE's
sole discretion, violates this provision, including without limitation,
removing the offending Content from the MyNGE Services and terminating the
Membership of such violators. Prohibited Content includes, but is not
limited to, Content that, in the sole discretion of MyNGE:
8.1
is
patently offensive and promotes racism, bigotry, hatred or physical harm of any
kind against any group or individual;
8.2
harasses
or advocates harassment of another person;
8.3
exploits
people in a sexual or violent manner;
8.4
contains
nudity, excessive violence, or offensive subject matter or contains a link to
an adult website;
8.5
solicits
personal information from anyone under 18;
8.6
publicly
posts information that poses or creates a privacy or security risk to any
person;
8.7
constitutes
or promotes information that you know is false or misleading or promotes
illegal activities or conduct that is abusive, threatening, obscene, defamatory
or libelous;
8.8
constitutes
or promotes an illegal or unauthorized copy of another person's copyrighted
work, such as providing pirated computer programs or links to them, providing
information to circumvent manufacturer-installed copy-protect devices, or
providing pirated music or links to pirated music files;
8.9
involves
the transmission of "junk mail," "chain letters," or
unsolicited mass mailing, instant messaging, "spimming," or
"spamming";
8.10 contains restricted
or password only access pages or hidden pages or images (those not linked to or
from another accessible page);
8.11 furthers or promotes
any criminal activity or enterprise or provides instructional information about
illegal activities including, but not limited to making or buying illegal
weapons, violating someone's privacy, or providing or creating computer
viruses;
8.12 solicits passwords or
personal identifying information for commercial or unlawful purposes from other
Users;
8.13 involves commercial
activities and/or sales without prior written consent from MyNGE such as
contests, sweepstakes, barter, advertising, or pyramid schemes;
8.14 includes a photograph
or video of another person that you have posted without that person's consent;
8.15 for band, comedy,
filmmaker and other profiles, uses sexually suggestive imagery or any other
unfair, misleading or deceptive Content intended to draw traffic to the
profile; or
8.16 violates the privacy
rights, publicity rights, copyrights, trademark rights, contract rights or any
other rights of any person.
The following are
examples of the kind of activity that is illegal or prohibited on the MyNGE
Website and through your use of the MyNGE Services. MyNGE reserves the
right to investigate and take appropriate legal action against anyone who, in
MyNGE's sole discretion, violates this provision, including without limitation,
reporting you to law enforcement authorities. Prohibited activity
includes, but is not limited to:
8.17 criminal or tortious
activity, including child pornography, fraud, trafficking in obscene material,
drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses
or other harmful files, copyright infringement, patent infringement, or theft
of trade secrets;
8.18 advertising to, or
solicitation of, any Member to buy or sell any products or services through the
unauthorized or impermissible use of the MyNGE Services. You may not
transmit any chain letters or junk email to other Members. In order to
protect our Members from such advertising or solicitation, MyNGE reserves the
right to restrict the number of emails which a Member may send to other Members
in any 24-hour period to a number which MyNGE deems appropriate in its sole
discretion. If you breach this Agreement and send unsolicited bulk email,
instant messages or other unauthorized commercial communications of any kind
through the MyNGE Services, you acknowledge that you will have caused
substantial harm to MyNGE, but that the amount of such harm would be extremely
difficult to ascertain. As a reasonable estimation of such harm, you
agree to pay MyNGE $50 for each such unsolicited email or other unauthorized
commercial communication you send through the MyNGE Services;
8.19 circumventing or
modifying, attempting to circumvent or modify, or encouraging or assisting any
other person in circumventing or modifying any security technology or software
that is part of the MyNGE Services;
8.20 activity
that involves the use of viruses, bots, worms, or any other computer code,
files or programs that interrupt, destroy or limit the functionality of any
computer software or hardware, or otherwise permit the unauthorized use of or
access to a computer or a computer network;
8.21 covering or obscuring
the banner advertisements on your personal profile page, or any MyNGE page via
HTML/CSS or any other means;
8.22 any automated use of
the system, such as, but not limited to, using
scripts to add friends or send comments or messages;
8.23 interfering with,
disrupting, or creating an undue burden on the MyNGE Services or the networks
or services connected to the MyNGE Services;
8.24 impersonating or
attempting to impersonate another Member, person or entity;
8.25 for band, comedy,
filmmaker and other profiles containing a MyNGE player, copying the code for
your MyNGE Player and embedding it (or directing
others to embed it) anywhere other than your band profile on MyNGE;
8.26 using the account,
username, or password of another Member at any time or disclosing your password
to any third party or permitting any third party to access your account;
8.27 selling or otherwise
transferring your profile;
8.28 using any information
obtained from the MyNGE Services in order to harass, abuse, or harm another
person or entity, or attempting to do the same;
8.29 displaying an
unauthorized commercial advertisement on your profile, or accepting payment or
anything of value from a third person in exchange for your performing any
commercial activity through the unauthorized or impermissible use of the MyNGE
Services on behalf of that person, such as placing commercial content on your
profile, posting blogs or bulletins with a commercial purpose, selecting a
profile with a commercial purpose as one of your "Top 8" friends, or
sending private messages with a commercial purpose; or
8.30 using the MyNGE
Services in a manner inconsistent with any and all applicable laws and
regulations.
9. Protecting Copyrights
and Other Intellectual Property. MyNGE respects the intellectual
property of others, and requires that our users do the same. You may not
upload, embed, post, email, transmit or otherwise make available any material
that infringes any copyright, patent, trademark, trade secret or other
proprietary rights of any person or entity. MyNGE has the right to
terminate the Membership of infringers.
If you believe your work has been copied and posted on or
through the MyNGE Services in a way that constitutes copyright infringement,
please send MyNGE's Copyright Agent a notification of claimed infringement with
all of the following information: (a) identification of the copyrighted work
claimed to have been infringed, or, if multiple copyrighted works are covered
by a single notification, a representative list of such works; (b)
identification of the claimed infringing material and information reasonably
sufficient to permit us to locate the material on the MyNGE Services (providing
the URL(s) of the claimed infringing material satisfies this requirement); (c)
information reasonably sufficient to permit us to contact you, such as an
address, telephone number, and, if available, an email address; (d) 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; (e) a statement by
you, made under penalty of perjury, that the above information in your
notification is accurate and that you are the copyright owner or a uthorized to
act on the copyright owner's behalf; and (f) your physical or electronic
signature. MyNGE's Copyright Agent for notification of claimed
infringement can be reached as follows: Copyright Agent, MyNGE –
admin@mynge.com. MyNGE's Copyright Agent
for notification of claimed infringement can also be reached electronically by clicking here. MyNGE
provides certain tools and technologies to help facilitate copyright owners’
control over their copyrighted works.
10. Member Disputes. You are solely
responsible for your interactions with other MyNGE Members. MyNGE
reserves the right, but has no obligation, to become involved in any way with
disputes between you and other Members.
11. Privacy. Use of the MyNGE
Services is also governed by our Privacy Policy,
which is incorporated into this Agreement by this reference.
12. Disclaimers. MyNGE is not
responsible for and makes no warranties, express or implied, as to the User
Content or the accuracy and reliability of the User Content posted on or
through the MyNGE Services, whether caused by Users of the MyNGE Services or by
any of the equipment or programming associated with or utilized in the MyNGE
Services and such User Content does not necessarily reflect the opinions or
policies of MyNGE. Profiles and third party applications created and posted
by Members on the MyNGE Website may contain links to other websites.
MyNGE is not responsible for the content, accuracy or opinions expressed
on such websites, and such websites are not necessarily investigated, monitored
or checked for accuracy or completeness by MyNGE. Inclusion of any linked
website on the MyNGE Services does not imply approval or endorsement of the
linked website by MyNGE. When you access these third party sites, you do
so at your own risk. MyNGE takes no responsibility for third party
advertisements or third party applications that are posted on or through the
MyNGE Services, nor does it take any responsibility for the goods or services
provided by its advertisers. MyNGE is not responsible for the conduct, whether
online or offline, of any User of the MyNGE Services. MyNGE assumes no
responsibility for any error, omission, interruption, deletion, defect, delay
in operation or transmission, communications line failure, theft or destruction
or unauthorized access to, or alteration of, any User or Member communication.
MyNGE 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 any email or players due to technical
problems or traffic congestion on the Internet or on any of the MyNGE Services
or combination thereof, including any injury or damage to Users or to any
person's computer related to or resulting from participation or downloading
materials in connection with the MyNGE Services. Under no circumstances
shall MyNGE be responsible for any loss or damage, including personal injury or
death, resulting from use of the MyNGE Services, attendance at a MyNGE event,
from any User Content posted on or through the MyNGE Services, or from the
conduct of any Users of the MyNGE Services, whether online or offline.
The MyNGE Services are provided "AS-IS" and as available and
MyNGE expressly disclaims any warranty of fitness for a particular purpose or
non-infringement. MyNGE cannot guarantee and does not promise any
specific results from use of the MyNGE Services.
13. Limitation on
Liability.
IN NO EVENT SHALL MYNGE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING
LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE MYNGE SERVICES, EVEN IF MYNGE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, MYNGE'S LIABILITY TO YOU FOR ANY
CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE
LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MYNGE FOR THE MYNGE SERVICES
DURING THE TERM OF MEMBERSHIP.
14. U.S. Export
Controls.
Software available in connection with the MyNGE Services (the
"Software") is further subject to United States export controls. No
Software may be downloaded from the MyNGE Services or otherwise exported or
re-exported in violation of U.S. export laws. Downloading or using the
Software is at your sole risk.
15. Disputes. The Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflict of law provisions. You and MyNGE
agree to submit to the exclusive jurisdiction of the courts located within the
State of New York to resolve any dispute arising out of the Agreement or the
MyNGE Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS,
CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES
ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY
ENTERING INTO THIS AGREEMENT.
16. Indemnity. You agree to
indemnify and hold MyNGE, its subsidiaries, and affiliates, and their
respective officers, agents, partners and employees, harmless from any loss,
liability, claim, or demand, including reasonable attorneys' fees, made by any
third party due to or arising out of your use of the MyNGE Services in
violation of this Agreement and/or arising from a breach of this Agreement
and/or any breach of your representations and warranties set forth in this
Agreement and/or if any Content that you post on or through the MyNGE Services
causes MyNGE to be liable to another.
17. Other. This Agreement is
accepted upon your use of the MyNGE Website or any of the MyNGE Services and is
further affirmed by you becoming a Member. This Agreement constitutes the
entire agreement between you and MyNGE regarding the use of the MyNGE Services.
The fail
