Terms of Service
Welcome to the Narwhaler LLC website (the "Site") of narwhaler.com.
PLEASE READ THESE TERMS OF SERVICE (the "Terms") CAREFULLY BEFORE USING THIS SITE OR ANY SERVICES OR APPLICATIONS RELATED TO THIS SITE.
1. Your Acceptance
A. By using or visiting the Narwhaler LLC website or any Narwhaler LLC products, software, data feeds, and services provided to you on, from, or through the Narwhaler LLC website (collectively the "Service") and by clicking on the “I Agree” below you signify your agreement to these terms and conditions (the "Terms of Service"), and Narwhaler LLC's privacy notice, found at and incorporated herein by reference. If you do not agree to any of these terms or the Narwhaler LLC privacy notice, please do not use the Service.
B. Although Narwhaler LLC may attempt to notify you when significant changes are made to these Terms of Service, you should periodically review the most up-to-date version. Narwhaler LLC may, in its sole discretion, modify or amend these Terms of Service at any time, and you agree to be bound by such modifications or revisions.
2. Service
A. These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. “Content” includes any materials, videos, sound recordings, compositions, pictures, song lyrics, text, software, scripts, graphics, photos, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of Narwhaler LLC, including but not limited to all products, software and services offered via the Narwhaler LLC website.
B. The Service may include links to third-party websites that are not owned or controlled by Narwhaler LLC. Narwhaler LLC has no control over and therefore assumes no responsibility for, the content or practices of any third-party websites. Narwhaler LLC cannot censor or edit the content of any third-party site. By using the Service you expressly relieve Narwhaler LLC from any and all liability arising from your use of any third-party website.
3. Narwhaler LLC Accounts
A. In order to access some features of the Service, you will need to create a Narwhaler LLC account. You must provide complete and accurate information when creating your account. You are solely responsible for the activity that occurs on your account. You must keep your account password secure.
B. In addition to your other obligations under these Terms of Service and in consideration of your use of the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Narwhaler LLC registration form or when otherwise requested, and (ii) maintain and promptly update such personal information to keep it true, accurate, current and complete. If you provide any personal information that is untrue, inaccurate, not current or incomplete, or Narwhaler LLC has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Narwhaler LLC 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. General Use of the Service—Permissions and Restrictions
Narwhaler LLC hereby grants you the limited right to view and use the Site and the Service as set forth in these Terms of Service, provided that:
A. You agree not to distribute any part of the Service or the Content in any medium without Narwhaler LLC's prior written consent;
B. You agree not to alter or modify any part of the Content or of the Service;
C. You are of legal age to enter into contracts (you are not a minor). If you are a minor, you hereby represent and warrant that you have obtained the consent of your parent or legal guardian for you to enter this agreement as provided below; you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service;
D. You have full right and power to enter into and perform this agreement, and have secured all third party permissions necessary to enter into this agreement and to submit the Content as provided herein, including, without limitation, from all individuals portrayed and performing in the Content;
E. You agree to access Content only through the video playback pages of the Service itself or other explicitly authorized means Narwhaler LLC may designate;
F. The Content is your own original work, and contains no material otherwise created by someone who is not you;
G. We are not required to make any payments of any kind to you or any other person or company in connection with our use of the Content;
H. The Content does not and will not infringe on any third party’s intellectual property or other proprietary rights, or rights of publicity or privacy and the Content is not and will not be defamatory, libelous, pornographic or obscene;
I. The Content does not and will not violate any law and the Content does not and will not contain any viruses or other information which may damage or otherwise interfere with our computer systems or data or that of our visitors or other users;
J. You agree not to use the Service for any commercial purposes unless you obtain Narwhaler LLC's prior written approval;
K. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the Narwhaler LLC servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Narwhaler LLC grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Narwhaler LLC reserves the right to revoke these exceptions either generally or in specific cases;
L. All factual assertions that you have made and will make to us are true and complete and all consents and other documents provided to us are true and valid copies of the originals; and
M. Narwhaler LLC reserves the right to discontinue any aspect of the Service at any time.
5. Use of Content
In addition to the stated restrictions above, the following restrictions apply specifically to your use of Content.
A. The Content and the Service is subject to copyright and other intellectual property rights under the law, and trademarks, service marks and logos on the Service are owned by or licensed to Narwhaler LLC.
B. Content is provided to you AS IS. You may access Content only for your personal use as permitted under these Terms of Service. You agree not download any Content unless permitted to do so by Narwhaler LLC. You agree not to copy, reproduce, distribute, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of Narwhaler LLC. Narwhaler LLC reserves all rights not expressly granted in the Service.
C. You agree not to circumvent, disable or in any way interfere with security features of the Service or other features that prevent or restrict use or copying of any Content.
D. You agree that the Content on the Service comes from a variety of sources, and that Narwhaler LLC is not responsible for the accuracy or intellectual property rights relating to such Content. You further agree that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive any legal or equitable rights or remedies you have or may have against Narwhaler LLC.
6. Content Submissions
A. As a Narwhaler LLC Site user or account holder you may submit Content to the Service. You hereby irrevocably grant, transfer and convey to Narwhaler LLC a worldwide, royalty-free, sublicenseable and transferable license to use and the unlimited and unconditional right to distribute, exploit and use, on a non-exclusive basis in perpetuity, anywhere and everywhere in the universe, in any media and by any means now known or hereafter devised, any materials, videos, sound recordings, compositions, pictures, song lyrics and/or other content (the “Content”) submitted by you to us. We shall have the right to use, market, store, edit, distribute, reproduce, display, perform, transmit, and promote the Content on an exclusive basis in any way we see fit without payment to you. We may therefore reproduce, edit, distribute, publicly perform, publicly display and digitally perform and/or distribute the Content in whole or in part, alone or together with other material, on all media (including but not limited to the Internet, other web sites, television, videos/DVDs, cell phones, CDs and radio), and in any format by any means now known or hereafter devised. We shall also have the right to use the Content in order to promote our products and services and to use your name, picture, photograph, other reproduction of your appearance, and biographical material without any payment to you. You hereby waive any right to inspect or approve uses of the Content and you also waive any moral rights you may have in the Content.
B. You retain full ownership of and all right, title, and interest in and to the Content, including any related copyrights, subject to the rights granted to us under this agreement.
C. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Narwhaler LLC all patent, trademarks, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
D. Upon our request, you agree to furnish Narwhaler LLC with all documentation, consents and/or other releases necessary to prove your unrestricted ownership in all materials contained in the Content and/or your right to use such materials without limitation for any purpose including without limitation all agreements with all third parties appearing in the Content setting forth those third parties consents to your use of the Content.
E. To the extent that you appear in the Content, you agree that we have the right to use (and to license to others to use) your name, voice and likeness in connection with our use of the Content without any payment to you. You hereby waive any rights to privacy, publicity and defamation, whether granted by statute or common law, that you may have in connection with the Content.
F. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Narwhaler LLC all of the license rights granted herein.
G. Narwhaler LLC does not permit infringement of intellectual property rights on the Service, and Narwhaler LLC will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Narwhaler LLC reserves the right to remove Content without prior notice.
7. Account Termination
A. If the user is determined to be a repeat infringer, Narwhaler LLC will terminate a user's access to the Service.
B. Narwhaler LLC reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement. Narwhaler LLC may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
8. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, NARWHALER LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. NARWHALER LLC MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) 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 SERVICES. VIUMBE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NARWHALER LLC WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
9. Limitation of Liability
IN NO EVENT SHALL NARWHALER LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NARWHALER LLC SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
10. Indemnity
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Narwhaler LLC, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service. You are familiar with Section 1542 of the Civil Code of the State of California, which provides as follows: • 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 waive and relinquish any right and benefit which you may have under Section 1542 and under any similar laws of any state or territory of the United States or other jurisdictions to the extent that you may lawfully do so in connection with the subject matter of this agreement.
11. Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be assigned by you without Narwhaler LLC’s prior written consent, but may be assigned by Narwhaler LLC without restriction.
12. General
These Terms of Service shall be governed by the substantive laws of the State of Delaware, without respect to its conflict of laws principles. Any claim or dispute between you and Narwhaler LLC that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Wilmington, Delaware. These Terms of Service shall constitute the entire agreement between you and Narwhaler LLC. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Narwhaler LLC's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND NARWHALER LLC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Dated: June 28, 2011
