Last Revised: September 27, 2011
1. Changes to Terms.
Larkwire reserves the right to change or modify any of the terms and conditions contained in these Terms or any policy or guideline of the Site, at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site. Your continued use of this Site following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, you must stop using the Site. You warrant and attest that you are at least fourteen (14) years of age.
3. Copyright and Limited License
Unless otherwise indicated, the Site and all content and other materials on the Site or distributed through the Services, including, without limitation, the Larkwire logo, and all designs, text, graphics, pictures, images, videos, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "Materials") are the property of Larkwire and its licensors and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Site ("Site License"). Except to the extent that you are granted specific rights pursuant to purchasing a license to use a particular Product or Service, the Site License does not include or authorize: (a) any resale or commercial use of the Site or the Materials therein; (b) the distribution, public performance or public display of any Product or Materials; (c) modifying or otherwise making any derivative uses of the Site, Products or the Materials, or any portion thereof; (d) use of automated means, including spiders, robots, crawlers, offline readers, data mining tools, or the like to download data from the Site or Service or to cause an overload of Larkwire servers ; (e) downloading (other than page caching) of any portion of the Site, the Materials or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Larkwire's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Site; (g) collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes; (h) use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (i) any use of the Site or the Materials other than for their intended purpose. Any use of the Site or the Materials other than as specifically authorized herein, without the prior written permission of Larkwire, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time for any reason by Larkwire.
Use of this Site is Free. If you choose to purchase Products made available on this site, all charges and payments shall be in U.S. dollars. For those customers making payment by credit card or Paypal, you authorize Larkwire to bill your account for amounts authorized. Larkwire reserves the right to collect certain taxes or other assessments from you in order to comply with local, state, Federal, or international laws and regulations, as required now or later imposed. If you claim exemption from any taxes, you shall provide Larkwire with documentation required by the taxing authority to support an exemption. Larkwire reserves the right to change the price of its Products and Services at any time. No refunds shall be issued for any reason except within Larkwire's sole discretion
You are granted a limited, non-exclusive right to create a text hyperlink to the Site, provided such link does not portray Larkwire, any of its products or services, in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may use a Larkwire logo or other proprietary graphic to link to this Site without the express written permission of Larkwire as long as the manner of your use is not objectionable to Larkwire. In the event that Larkwire objects to your use of the Larkwire logo or other proprietary graphic, you agree to cease using them. Further, you may not use, frame or utilize framing techniques to enclose any Larkwire trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Larkwire's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Larkwire or any third party.
6. Third Party Content
Larkwire or its industry partners may provide links to Web pages and content of third parties as a service to those interested in such links and content, and Larkwire may post third party content. Larkwire does not monitor or have any control over any Third Party Content or third party Web sites. Larkwire does not endorse or adopt any Third Party Content or third party Website and can make no guarantee as to its accuracy or completeness. Larkwire does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any Third Party Content or third party Websites. Users use these links, Third Party Content and third party Websites at their own risk. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
7. Third Party Services
The Site may also contain, provide information regarding or link to certain applications and services provided or offered by third parties (collectively the "Third-Party Services"). Larkwire is merely an information provider and is not a referral service, and it does not recommend or endorse any such Third-Party Services or monitor or have any control over such Third-Party Services. Therefore, Larkwire makes no guarantee, representation or warranty of any kinds as to the quality, competency, value, reliability, responsiveness, accuracy or completeness of any such Third-Party Services or the results obtained therefrom, and Larkwire assumes no responsibility or liability for any Third Party Services or for the actions or failure to act of those providing such Third-Party Services. You assume full responsibility for your use of any such Third-Party Services, and Larkwire is not responsible or liable for any Third-Party Services.
8. DIGITAL MILLENNIUM COPYRIGHT ACT
Larkwire responds to notices of alleged copyright infringement. This page describes the procedures related to allegations of infringement. The form of notice specified below is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Website.
Larkwire's response to these notices may include removing or disabling access to allegedly infringing Materials and/or terminating access. If we remove Materials or terminate access in response to such a notice, we will make a good-faith attempt to contact the party that uploaded such Materials so that they may make a counter notification.
To file a notice of infringement with us, please provide a written communication (by fax or regular mail -- not by email) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent Materials that infringe your copyrights.
To expedite Larkwire's ability to process your request, please use the following format (including section numbers):
Identify in sufficient detail the copyrighted work that you believe has been infringed (for example, "The copyrighted work at issue is the text that appears on http://www.______.com/_______.html") or other information sufficient to specify the copyrighted work being infringed (for example, "The copyrighted work at issue is the book titled "My Summer at Camp" by Dawn Early, published by _________, ISBN #___________").
Identify with specificity the Material that you claim infringes the copyrighted work.
Provide your contact information (email address is preferred).
Provide contact information, if possible, for the owner/administrator of the allegedly infringing Materials (email address is preferred).
Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
Sign the notice.
Send the written communication to the following address:
Alex Modelski ATER WYNNE LLP 601 Union Street, Suite 1501 Seattle, WA 98101
The law permits the publisher of the allegedly infringing Materials or a site administrator of an affected site to make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When Larkwire receives a counter notification, we may reinstate the complained-of Materials.
To file a counter notification, please provide a written communication (by fax or regular mail -- not by email) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that Materials are not infringing the copyrights of others. A sample counter notification may be found at www.chillingeffects.org/dmca/counter512.pdf.
To expedite our ability to process your counter notification, please use the following format (including section numbers):
Identify the specific URLs or other unique identifying information of Materials that Larkwire has removed, to which Larkwire has disabled access or to which Larkwire referred in a communication with you.
Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or King County, WA if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."
Sign the paper.
Send the written communication to the following address:
Alex Modelski ATER WYNNE LLP 601 Union Street, Suite 1501 Seattle, WA 98101
"Larkwire", the Larkwire logo and any other product or service name or slogan displayed on the Site or Service are trademarks of Larkwire and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Larkwire or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Larkwire" or any other name, trademark or product or service name of Larkwire without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Larkwire and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Larkwire names or logos displayed on the Site or through the Service are the property of their respective owners.
10. Disclaimers and Acknowledgements Regarding Use of Site Information
THE SITE, THE MATERIALS, THE PRODUCTS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. LARKWIRE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT, PRODUCTS AND MATERIALS. LARKWIRE DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS, MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. LARKWIRE DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LARKWIRE IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN PRODUCTS, ON THE SITE OR ACCESSED THROUGH THE SERVICE. WHILE LARKWIRE ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, LARKWIRE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S), OR ANY CONTENT, PRODUCTS OR MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.
Larkwire reserves the right to change any and all content contained on the Site and any Services offered through the Site at any time without notice.
11. Limitation of Liability
IN NO EVENT SHALL LARKWIRE OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SITE, THE SERVICES, THE CONTENT, PRODUCTS OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM LARKWIRE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO LARKWIRE'S RECORDS, PROGRAMS, PRODUCTS OR SERVICES. THE AGGREGATE LIABILITY OF LARKWIRE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SITE OR THE SERVICE, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO LARKWIRE FOR ACCESS TO OR USE OF THE SITE, PRODUCTS OR THE SERVICES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold harmless Larkwire, its corporate affiliates, independent contractors, service providers and consultants, and each of their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of or inability to use the Site or the Services, including without limitation any actual or threatened suit, demand or claim arising out of or relating to your use of the Site, Service or your conduct, your violation of these Terms or your violation of the rights of any third party.
13. Dispute Resolution.
The validity of this Agreement and the rights, obligations, and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of Washington, without regard to conflicts of law principles. In the event of any controversy or claim arising out of or relating in any way to this Agreement or the Services, the parties agree hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If they do not reach settlement within a period of sixty (60) days, then either party may, by notice to the other party demand mediation under the mediation rules of the American Arbitration Association in Seattle, WA. The parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Seattle, Washington. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously. Nothing herein shall prevent either party from seeking injunctive relief for any breach of its intellectual property rights by the other party.
14. Applicable Law and Venue
You agree that with respect to any disputes or claims not subject to arbitration (as set forth above), any action at law or in equity arising out of or relating to the Site, the Services, the Products or these Terms shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
If any of these Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.
You may choose to or we may invite you to submit comments or ideas about the Site, Services, or Products, including without limitation about how to improve them ("Feedback"). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Larkwire under any fiduciary or other obligation, that we are free to disclose the Feedback on a non-confidential basis to anyone or otherwise use the Feedback without any additional compensation to you. You acknowledge that, by acceptance of your submission, Larkwire does not waive any rights to use similar or related ideas previously known to Larkwire, or developed by its employees, or obtained from sources other than you.
17. General legal terms
The Terms constitute the whole legal agreement between you and Larkwire and govern your use of the Services (but excluding any services which Larkwire may provide to you under a separate written agreement), and completely replace any prior agreements between you and Larkwire in relation to the Services.
You agree that Larkwire may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services. You also agree to receive marketing emails related to the Services and content of this Site.
You agree that if Larkwire does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Larkwire has the benefit of under any applicable law), this will not be taken to be a formal waiver of Larkwire's rights and that those rights or remedies will still be available to Larkwire.
Last Revised: Sept 27 2011
WHAT IS "PERSONAL INFORMATION"?
As used herein, the term "personal information" generally means information that specifically identifies an individual (such as user's name, address, telephone number, e-mail address, credit card or other account number) or that is associated with an identifiable person (such as demographic information or information about a person's activities when such information is linked to personally identifying information). Personal information does not include "aggregate" information, which is data we collect about the use of the Site or categories of Site users, from which any personal information has been removed. For example, information that forty-seven percent of the Site's registered users identify themselves as male, is aggregate information. We collect aggregate data for a number of purposes, including to help us understand trends and user needs so that we can better consider new publications, products and services, and tailor existing publications, products and services to user desires. This policy in no way limits or restricts our collection of aggregate information.
WHAT PERSONAL INFORMATION DO WE COLLECT?
We do not collect any personal information from mere visitors to the Site. Your email address may be collected when you send us an email. If you register for our Service, we may collect your name and email address. If you purchase an item, we will collect your name, physical address, telephone number, email address and credit card information.
WHAT OTHER INFORMATION DO WE COLLECT?
When you visit our Site, some information is also automatically collected through the use of log files, such as your computer's Internet Protocol (IP) address, your computer's operating system, the browser type, the address of a referring web site and your activity on the Site. We use this information for purposes such as analyzing trends, administering the Site, improving customer service, diagnosing problems with our servers, tracking user movement, and gathering broad demographic information for aggregate use. We may also automatically collect certain information through the use of "cookies." Cookies are small data files that are stored on a user's hard drive at the request of a Web site to enable the site to recognize users who have previously visited them and retain certain information such as customer preferences and history. If we combine cookies with or link them to any of the personally identifying information, we would treat this information as personal information. If you wish to block, erase, or be warned of cookies, please refer to your browser instructions or help screen to learn about these functions. However, if your browser is set not to accept cookies or if you reject a cookie, you will not be able to sign in to your Larkwire account and will not be able to access certain Site features or Services.
We may also use third parties to provide certain services, such as processing payment transactions, collecting, tracking and analyzing non-personally identifiable usage and statistical information from users, such as the user's browser type, operating system, browsing behavior and demographic information. These third parties may collect personal information from you in connection with the Services they provide and may place cookies, web beacons or other devices on your computer to collect nonpersonal information which may be used, among other things, to deliver advertising targeted to your interests and to better understand the usage and visitation of our Site and the other sites tracked by these third parties. We are not responsible for, and do not control, any actions or policies of any third party service providers.
USAGE AND DISCLOSURE
To process transactions: We will use your information for the purposes of processing transactions for the products and services purchased by you.
To send periodic emails: The email address you provide may be used to send you information and/or updates pertaining to product orders, if any, in addition to occasional company news, updates, related product or service information, etc.
We do not sell, share, or rent any personal information to others in ways different from what is disclosed in this Policy without first obtaining your consent, although we may provide aggregate information or other nonpersonal information to third parties without your authorization. We may share your contact information with third parties if you have indicated to us that you wish to receive information from such parties. In the event that we engage or partner with third party vendors, consultants or other service providers in connection with the operation of our business ("Service Providers"), we may share personal information with such Service Providers who need access to such information to carry out their work for us. For example, we may use credit card processing or verification service companies to verify credit card information. In addition, we may offer various features through a third party service provider.
WHAT STEPS DO WE TAKE TO PROTECT YOUR INFORMATION ONLINE?
Larkwire endeavors to secure your personal information from unauthorized access, use or disclosure by putting into place physical, electronic and managerial procedures to safeguard the information we collect through this Site. Additionally, your account information is accessible online only through the use of a password. Please be aware, however, that despite our efforts, no security measures are perfect or impenetrable. To protect the confidentiality of your personal information, you must keep your password confidential and not disclose it to any other person. You are responsible for all uses of the Site by any person using your password. Please advise us immediately by emailing us at email@example.com if you believe your password has been misused. You should also note that email is not secure, and you should not send any confidential or sensitive information to us via an unsecured email.
WHAT CHOICES DO YOU HAVE REGARDING THE USE OF YOUR INFORMATION?
You may "opt out" of receiving news and product update emails from Larkwire by following the unsubscribe instructions or using the unsubscribe links within the emails we send. Please note, however, that as long as you maintain an account, you may not "opt out" of receiving service or account-related emails from Larkwire.
HOW CAN YOU CORRECT AND UPDATE YOUR PERSONAL INFORMATION OR OBTAIN ADDITIONAL INFORMATION
If you have any questions or comments about this Policy or the practices relating to this Site, or you wish to verify, correct or delete any personal information we have collected, please contact us at firstname.lastname@example.org. You can correct certain information by logging into your account and changing the information, and you may also delete certain information by closing your account. However, please note that in certain circumstances, we may not, or may not be able to, remove or change certain information, even in the event an account is closed. For example, we may retain certain information, such as credit card verification for legally permissible periods. In lieu of email, you may also contact us by mail at the following address:
Alex Modelski ATER WYNNE LLP 601 Union Street, Suite 1501 Seattle, WA 98101