Updated: August 2012
Note that special terms or rules may apply to some services offered on certain POWER BALANCE Sites, such as rules for particular contests or sweepstakes, applications or other features or activities. Any such terms are in addition to these Terms, and in the event of a conflict, prevail over these Terms.
2. Use of POWER BALANCE Sites and Content
You are responsible to pay carrier data, messaging, and other fees resulting from your usage of the POWER BALANCE Sites. Data and messaging (including SMS text messages) plans may be required to use any mobile features of the POWER BALANCE Sites. Standard data and messaging charges, fees, and taxes from your carrier apply.
All information, materials, functions and other content (including, but not limited to, text, photographs, video, graphics, music, images, animations, audio “applets” incorporated into the software data, sounds, the “User Content (defined in Section 3) and any other materials on the POWER BALANCE Sites (together "Content") are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the POWER BALANCE Sites or delete Content or features at any time, in any way, for any or no reason. Except as we specifically agree in writing, no Content from any POWER BALANCE Sites may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the POWER BALANCE Sites, except that where an POWER BALANCE Site is configured to enable the download of particular Content, you may download one copy of such Content (or such number of copies as we may specify from time to time) to a single computer for your personal, noncommercial home use only, provided that you: (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the Content, and (c) do not use the Content in a manner that suggests an association with any of our products, services or brands. You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information of POWER BALANCE without express written consent. You may not use any meta tags or other “hidden text” utilizing POWER BALANCE’s name or trademarks without our express written consent. Any business use, "re-mailing" or high-volume or automated use of POWER BALANCE Sites is prohibited.
3. User Content
In these Terms, we use the word "User Content" to mean text, messages, ideas, comments, concepts, pitches, suggestions, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, musical compositions (including lyrics), sound recordings, characterizations, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, " Distribute") on or through an POWER BALANCE Sites. There are two types of User Content: Solicited User Content and Unsolicited User Content. "Solicited User Content" means User Content (a) that we expressly request or enable you to provide to us via any feature or activity on an POWER BALANCE Site for our review or display and possible specifically-defined consideration or compensation (collectively, " Consideration") (such as prizes or other value in games, sweepstakes, contests and promotions); and (b) that you Distribute on or through any POWER BALANCE Site for which you do not seek Consideration (such as on our blogs or public forums (as defined below in Section 6, entitled "Public Forums and Communication"). "Unsolicited User Content" are any and all User Content that do not fall within subparagraphs (a) or (b) of this paragraph, including unsolicited content contained in a Solicited Submission (e.g., content that violates the Rules of Conduct (as defined below in Section 7, entitled “Rules of Conduct”).
DO NOT DISTRIBUTE ANY UNSOLICITED USER CONTENT; NO IMPLIED CONTRACT.
We do not accept or consider Unsolicited User Content so please do not Distribute Unsolicited User Content on or through any POWER BALANCE Sites. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work.
You agree that you have no expectation of any review, compensation or consideration of any type (other than any stated Consideration) in connection with your User Content. Further, you agree that any User Content you make are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way; we will assume all User Content you make are not confidential and will not treat them as such. Except as expressly stated in these Terms, the provisions of these Terms apply equally to Unsolicited User Content and Solicited User Content. Accordingly, we, our licensees, distributors, agents, representatives and other authorized users will be entitled to exploit and disclose all User Content, and we will not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.
4. Licenses, Representations and Warranties
You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all media formats and channels now known or hereafter devised (including on POWER BALANCE Sites, on third party web sites, on our broadcast and cable networks and stations, on our broadband and wireless platforms, products and services, on physical media, and in theatrical release) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the " User Content License").
By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct (set forth below in Section 7 labeled "Rules of Conduct") and other requirements of these Terms and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these Terms (including the User Content License). These Terms (including the User Content License) do not limit any past or future grant of rights, consents, agreements, assignments and waivers you may have made or make with respect to User Content. To the extent that any User Content you Distribute on or through POWER BALANCE Sites contain original songs or recordings, you hereby represent that you are a member of ASCAP, BMI, SESAC or any other applicable performing rights society and that all musical compositions (including lyrics) and sound recordings contained in such User Content are available for licensing to us (and our licensees, distributors, agents, representatives and other authorized users) directly from such societies. Notwithstanding the foregoing, regardless of whether you are a member of any performing rights society, you grant the User Content License with respect to each and every musical composition (including lyrics) and sound recordings contained in such User Content.
To the extent that we solicit User Content through features or activities on or through POWER BALANCE Sites (including games, sweepstakes, contests, promotions and Public Forums (defined below in Section 6, labeled "Public Forums and Communication") that require the use of our Content (in whole or in part), we hereby grant you a non-exclusive, revocable license to create a derivative work using our Content (in whole or in part) as required (but only as required, and only for the purpose of creating your User Content). If we make a request to you to stop using our Content and/or return or destroy any copies of our Content, you will do so immediately and will confirm in writing within ten (10) days that you have done so. Any license we extend to you for the use of our Content will be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) will be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your User Content are used by us. You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms. To the extent any "moral rights," "ancillary rights," or similar rights in or to the User Content exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you will procure the same agreement not to enforce from any others who may possess such rights. Without limiting the scope of the User Content License or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to User Content, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to User Content submitted by you to us.
The services on the POWER BALANCE Sites may permit or require you to register, or otherwise provide us information, to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You will not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other registration information, or another person's name, likeness, voice, image or photograph. You also agree to promptly notify us at customerservice@PowerBalance.com of any unauthorized use of your username, password, other registration information, or any other breach of security that you become aware of involving or relating to any POWER BALANCE Site. In addition, you agree to exit at the end of each session. Further, you are responsible for maintaining the confidentiality of your registration information and for all activities of other persons using your registration information. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be liable for losses incurred by POWER BALANCE or another party due to someone else using your account or password. You may not use anyone else’s account at any time.
We may suspend or terminate your ability to use any POWER BALANCE Site or portion thereof for failure to comply with these Terms or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever, at any time, immediately and without notice. All terms that by their nature may survive termination of these Terms shall be deemed to survive termination.
6. Public Forums and Communication
"Public Forum" means an area, site or feature offered as part of any POWER BALANCE Site that offers the opportunity for users to Distribute User Content for viewing by one or more POWER BALANCE Site users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, e-mail function (including electronic greeting cards and send-a-friend e-mails). You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk. You are and will remain solely responsible for the User Content you Distribute on or through any POWER BALANCE Site under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. Also, you agree that your use of any Submission posted in any Public Forum or otherwise on any POWER BALANCE Site by another user is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum. Nor are we responsible for any content posted by users that violates these Terms. We specifically disclaim any and all liability in connection with content posted by users. We owe you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to User Content you Distribute.
7. Rules of Conduct
The following Rules of Conduct apply to the POWER BALANCE Sites. By using the POWER BALANCE Sites, you agree that you will not Distribute any Submission that:
a) is (i) defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (ii) is bigoted, hateful, or racially or otherwise offensive; (iii) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (iv) otherwise harms or can reasonably be expected to harm any person or entity;
b) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
c) infringes or violates any right of a third party including: (i) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (ii) right of privacy (specifically, you must not distribute another person's personal information of any kind without their express permission) or publicity; or (iii) any confidentiality obligation.
d) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
e) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the POWER BALANCE Sites or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the POWER BALANCE Sites; or
f) (i) does not generally pertain to the designated topic or theme of the relevant Public Forum; (ii) violates any specific restrictions applicable to a Public Forum, including its age restrictions and procedures; or (iii) is antisocial, disruptive, or destructive, including "flaming," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the Internet.
We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of these Terms, and, as between you and us, you assume all risk of harm or injury resulting from any such lack of compliance.
8. Cooperation; Removal of User Content
We reserve the right, but disclaim any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from any POWER BALANCE Site that violates these Terms (including the Rules of Conduct) and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these Terms (including the Rules of Conduct) and/or our contest, sweepstakes, promotions, and game rules, and/or protect the safety or security of any person or property, including any POWER BALANCE Site. Moreover, we retain all rights to remove User Content at any time for any reason or no reason whatsoever.
9. Links and Endorsement Disclaimers
The Content of the POWER BALANCE Sites, including the User Content, are intended for educational or entertainment purposes only. Any opinions, advice, statements, services, offers or other information or content made or expressed by third parties, including users, information providers, or others, are those of the respective authors or distributors and do not state or reflect those of POWER BALANCE or its affiliates. Further, reference on the POWER BALANCE Sites by a third party, including users of the POWER BALANCE Sites, to any specific commercial products, process, or service by trade name, trademark, manufacturer, or otherwise, and however characterized, does not constitute or imply endorsement, recommendation, affiliation with or favoring of such products by POWER BALANCE or other users, nor, necessarily, the party making the statement. Nor do such statements necessarily indicate that the person making the statement received Consideration in return for the statements, unless otherwise noted. We cannot endorse, guarantee, or be responsible for the accuracy, efficacy, or veracity of any content generated by our users.
10. Claims of Copyright Infringement
We have adopted and implemented a policy for addressing claims of copyright infringement, and for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to Service Provider's Designated Agent. Notification must be submitted to the following Designated Agent: Service Provider: POWER BALANCE TECHNOLOGIES INC. Attn: Copyright Agent, 20512 Crescent Bay Suite 108, Lake Forest, CA 92630 Telephone Number of Designated Agent: (949) 272-7300 Facsimile Number of Designated Agent: (949) 272-7301 E-Mail Address of Designated Agent: Legal@PowerBalance.com
To be effective, the notification must be a written communication that includes the following:
a) A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) 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;
c) 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 us to locate the material;
d) Information reasonably sufficient to permit us 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;
e) 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; and
f) 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.
We may give you notice that we have removed or disabled access to certain material by means of a general notice on any POWER BALANCE Site, electronic mail to a user's e-mail address in our records, or by written communication sent by first-class mail to your physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
a) Your physical or electronic signature;
b) 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;
c) A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
d) Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which POWER BALANCE may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
11. Other Disclaimers
THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO POWER BALANCE SITES OR ANY THIRD PARTY SITES OR SERVICES LINKED TO OR FROM ANY POWER BALANCE SITE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY POWER BALANCE SITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
The POWER BALANCE Sites may contain statements of POWER BALANCE’s current or future plans or intentions; however, POWER BALANCE does not guarantee that any feature or product mentioned on the POWER BALANCE Sites will be developed, produced, or produced in the form, except as required by law.
You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users (“ Entities”), and each of the Entities' respective resellers, distributors, service providers and suppliers, and all of the Entities' respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the "Indemnified Parties") harass from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms or claims arising from your use of the POWER BALANCE Sites and/or your registration information. You will use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you. ,,
13. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE ENTITIES' RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, ANY POWER BALANCE SITE OR CONTENT, (B) ANY RELIANCE BY YOU ON INFORMATION CONTAINED ON THE POWER BALANCE SITES; OR (C) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF US OR ANY USER OF A POWER BALANCE SITE OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO ANY POWER BALANCE SITE. MOREOVER, UNDER NO CIRCUMSTANCES WILL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES' RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL. WE MAY TERMINATE YOUR FURTHER ACCESS TO POWER BALANCE SITES OR CHANGE THE POWER BALANCE SITES OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Jurisdiction, Venue and Choice of Law
You agree that any action at law or in equity arising out of or relating to these Terms or the POWER BALANCE Sites will be filed, and that venue properly lies, only in state or federal courts located in the state of California, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. These Terms will be governed by and construed in accordance with the laws of the State of California and the laws of the United States, without giving effect to any principles conflicts of law.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OR ANY POWER BALANCE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
15. Amendment of these Terms
At any time, we may amend these Terms (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to these Terms, we will post the amended Terms (with date of such amended Terms) on the POWER BALANCE Sites. You agree to be bound by any changes to these Terms when you visit and/or use the POWER BALANCE Sites after the date of any such amendment. We may also, in our sole discretion, notify you of such amendment by sending you an e-mail at the last e-mail address that you provided us. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of any amendment described in the notice.
16. General Provisions
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement
If any provision of these Terms will be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
No waiver of any provision of these Terms by us will be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
The POWER BALANCE Sites originate from and are maintained in the United States of America, and we make no representations regarding the legality of access to or use of the site or the materials from other countries. Any export or use of the materials by a user must be in compliance with all U.S. export laws and regulations in effect at the time of such export or use. Access in countries where the materials are illegal is prohibited. Users who access the POWER BALANCE Sites from outside of the United States do so at their own risk and are responsible for compliance with applicable U.S. export and local country laws.
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