Last Updated January 19, 2010
YOU SHOULD CAREFULLY READ THE FOLLOWING WOOPLE.COM TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE” OR “AGREEMENT”). IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES OF WOOPLE.COM (THE “SITE” OR “WOOPLE”). BY ACCESSING THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO ALL OF THESE TERMS.
Woople hereby grants to each User who has executed a Woople Activation Agreement, or has otherwise entered into a monthly usage fee or pre-paid usage fee arrangement with Woople, a limited, non-exclusive, non-sublicensable and non-transferrable license to access the Content and Services on the Site pursuant to conditions set forth in this Agreement, and subject to your payment of all applicable fees as determined by Woople.
You may not use the Site, its Content or any of its Services, in any manner that is inconsistent with these Terms of Service. You further agree that you will not upload, post, e-mail, or otherwise transmit to the Site or to any other User any messages, programs, or other materials (including but not limited to Trojan Horses, viruses, worms, and the like) that contain software viruses, malicious programs (“malware”), or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or telecommunications equipment.
Woople is not required to pre-screen third party materials even if they appear on Woople. Woople is not the publisher or author of any information on the Site that is provided by third parties, and you acknowledge that Woople is not liable for any claims related to such information. Woople assumes no responsibility for third party services, and you agree to hold Woople harmless in relation to such services. The Site may have links and references to other third party websites and materials. Woople does not assume any responsibility for these websites or materials.
A. As a Woople account holder you may be given permission to submit original content using the Woople Content Manager. Such submissions are referred to herein as "User Submissions." You understand that whether or not such User Submissions are published, Woople does not guarantee any confidentiality with respect to any User Submissions.
B. You shall be solely responsible for your own User Submissions and the consequences of publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Woople to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.
C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Woople, you hereby grant Woople a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Woople Website and Woople's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Woople Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant other users of the Woople Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Submissions terminate within a commercially reasonable time after you remove or delete your User Submissions from the Woople Website. You understand and agree, however, that Woople may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.
D. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Woople all of the license rights granted herein.
F. Woople does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Woople expressly disclaims any and all liability in connection with User Submissions. Woople does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Woople will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Woople reserves the right to remove Content and User Submissions without prior notice.
A. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
B. Woople's designated Copyright Agent to receive notifications of claimed infringement is: Jamie Woodard, 1175 Peacthree Street, N.E., Suite 300, Atlanta, GA 30361, email: email@example.com, fax: 404-815-9957. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Woople customer service. You acknowledge that if you fail to comply with all of the requirements of this Section VI, your DMCA notice may not be valid.
C. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Woople may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Woople's sole discretion.
Woople or its third party Content providers, if any, shall retain all worldwide Intellectual Property Rights in, on and to the Site, including without limitation trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, HTML code, XML code, the “look and feel” of the Site, its color combinations, layout, and all other graphical elements, and copyrights in any original work of authorship on the Site. Except as expressly stated on the Site or in this Agreement, you may not download, copy, reproduce, modify, distribute, transmit, republish, display or perform for commercial use anything that you read, hear or see on the Site. Notwithstanding the foregoing, nothing in this Agreement or on the Site shall be interpreted to grant you an express or implied license to any Intellectual Property Rights of Woople.
You are responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, whether or not expressly authorized by you. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Woople by emailing firstname.lastname@example.org.
Woople reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, including without limitation access policies, the availability of any Content or Service, hours of availability, software or equipment needed to access any Content or Service, effective with or without prior notice; provided, however, that material changes (as determined in Woople’s sole and absolute discretion) will be disclosed as follows: Woople will provide you with notification of such changes through notifications on the Site, by email, postal mail, or other means reasonably calculated to ensure notice to you. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using Woople. Your continued use of Woople following any revision to this Agreement constitutes your complete and irrevocable acceptance of any such changes. Woople may change, modify, suspend or discontinue any aspect of the Site at any time. Woople may also impose limits on certain features or restrict access to part or all of the Site at any time without notice or liability.
This Agreement is effective until terminated. You agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid prior to any termination of this Agreement. The provisions of Sections VI, X, XI, XIII, XIV and XV shall survive any termination of this Agreement.
WOOPLE, INCLUDING ITS CONTENT AND SERVICES, ARE PROVIDED “AS IS” AND WOOPLE DOES NOT WARRANT THAT THE CONTENT OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WOOPLE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.
NEITHER WOOPLE NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OR INABILITY TO USE THE SITE, ITS CONTENT OR SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OF OR DAMAGE TO YOUR DATA; OR (C) INTERRUPTION OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL WOOPLE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
Woople shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Woople, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Woople’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
In the event that you breach this Agreement, you hereby agree that Woople would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Woople shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Woople may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement and consistent with Section XIV, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
A. Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Woople agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. Woople will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to Woople, LLC, 1860 Pope Creek Rd., Wildwood, GA 30757, ATTN: Legal Department.
B. Binding Arbitration. If you and Woople are unable to resolve a dispute through informal negotiations, either you or Woople may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of the arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Woople may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
C. Restrictions. You and Woople agree that any arbitration shall be limited to the Dispute between Woople and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of other persons or the general public.
D. Exceptions to Informal Negotiations and Arbitration. You and Woople agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce, protect, or concerning the validity of any of your or Woople’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
E. Location. Any arbitration shall be initiated in Atlanta, Georgia (USA). Any Dispute not subject to arbitration (other than claims proceeding in any magistrate or small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction in the County of Dade, State of Georgia, United States of America, and you and Woople agree to submit to the personal jurisdiction of that court.
F. Governing Law. Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of Georgia, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For our clients who access the Site and its Services from Canada, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof.
G. Severability. You and Woople agree that if any portion of Section XIV is found illegal or unenforceable (except any portion of XIV(D)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section XIV(D) is found to be illegal or unenforceable then neither you nor Woople will elect to arbitrate any Dispute falling within that portion of Section XIV(D) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction in the County of Dade, State of Georgia, United States of America, and you and Woople agree to submit to the personal jurisdiction of that court.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Terms of Service Agreement is the complete and exclusive statement of the agreement between you and Woople concerning the Site, its Content and Services, and this Agreement supersedes any prior or contemporaneous agreement, either oral or written, any any other communications with regard thereto between you and Woople; provided, however, that this Agreement is in addition to, and does not supplant, the Woople Activation Agreement. This Agreement may only be modified as set forth herein. The section headings used herein are for reference only and shall not be read to have any legal effect.
I HEREBY CERTIFY THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AGREEMENT AND AGREE THAT MY USE OF THE SITE, ITS CONTENT AND SERVICES, IS AN ACKNOWLEDGEMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TERMS OF SERVICE AGREEMENT.