Purpose and Use of Naming Force Site.
Clients may submit a Contest via the Naming Force Site for Users to suggest names for a business, product, service or website. Client agrees to pay to Company all Naming Fees associated with each Contest posted by Client. Users may then submit name suggestions for the Contest. The Client shall Select one name suggestion from among those proposed by Users. The Client, in its sole discretion, reserves the right to Select a name from the submitted name suggestions. A User shall be entitled to payment of the full Naming Award associated with a Contest only if the name suggestion submitted by such User for such Contest is Selected by the Client. If the Client does not Select a name from the name suggestions submitted by Users within 7 days of the Contest name submission period, the Company reserves the right to choose a name suggestion from those submitted by Users in respect of such Contest and such selection by the Company shall be binding upon the Client. The User will be entitled to payment of the full Naming Award associated with such Contest regardless of whether the name suggestion submitted by such User was chosen by Client or by Company, as provided above. The User has 90 days from the time of winning to request the Award payment.
"Contest" means client-promoted Naming Contest.
"Chosen Name" means the Name Suggestion Selected by a Client or by the Company, if applicable, in respect of a Contest through use of the Naming Force Site by such Client.
"Client" means a Person that submits a Contest via the Naming Force Site.
"Content" means all information and data that may be disseminated, disclosed or displayed on or uploaded or posted to any portion of the Naming Force Site or the html code that comprises the Naming Force Site, including without limitation all Name Suggestions, designs, text, graphics, pictures, video, animation, information, music, sound, audio, illustrations, diagrams, data, html code and other files and creative output, in whatever format.
"Intellectual Property Rights" means any Invention, writing, trade name, trademark, service mark, mask work, copyright, patent or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, or similar laws.
"Inventions" includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.
"Moral Rights" means any rights to claim authorship of any Content, to object to or prevent any modification of any Content, to withdraw from circulation or control the publication or distribution of any Content, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right."
"Name Suggestions" means all names and naming ideas posted by Users on the Naming Force Site in response to a particular Contest.
"Naming Award" means the amount specified by a Client for a Contest as the award amount.
"Naming Fee" means the net revenue (gross revenue less commissions, incentives, rebates, etc.) charged by the Company and payable by a Client in connection with posting a Contest on the Naming Force Site.
"Person" means any individual, trust or legal entity.
"Proprietary Information" includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.
""Select" means (i) with respect to a Chosen Name selected by a Client, such Client's active use of the Website's functionality to register such Client's selection of a Naming Suggestion as a Chosen Name and (ii) with respect to a Chosen Name selected by the Company, as provided above, such Client's active use of the Website's functionality to register a Contest and the Company's selection of a Naming Suggestion as a Chosen Name as permitted by these Terms of Service.
Other Parties Rights in Content.
Monetary Compensation and Payment Obligations.
The Naming Force Site has been created to facilitate community-based generation of name suggestions. Users hereby acknowledge that any compensation received by a User in connection with the Naming Force Site in respect of a Contest may not bear any relation to the actual time expended by a User on a Contest or the quality or quantity of Content submitted by a User.
Service Interruptions and Naming Force Site Changes.
32nd Degree reserves the right to change, modify, interrupt, disable, suspend or terminate all or any portion of the Naming Force Site without prior notice or reason. Each Client and each User hereby agrees that 32nd Degree will not be liable for any interruptions, disabling, suspension or termination of the Naming Force Site. 32nd Degree reserves the right, in its sole discretion, at any time and for any reason or no reason to change, modify, interrupt, disable, suspend or terminate any portion or functionality of the Naming Force Site and to change, modify, interrupt, disable, suspend or terminate access to any Content contained on the Naming Force Site.
Ownership of Content.
Each User further acknowledges and agrees that any compensation that such User might receive as a result of submitting such Content, may be inadequate or below fair market value, and such User expressly agrees to bear such risk in connection with submitting Content on the Naming Force Site.
32nd Degree retains ownership of all Client account data and User account data, regardless of any Intellectual Property Rights in such Content.
Each Client and each User agrees that even though it may retain certain copyright or other Intellectual Property Rights with respect to Content that is submitted by it on the Naming Force Site, such Client or User does not own the account it uses to access the Naming Force Site, nor does it own any data 32nd Degree stores on servers owned or controlled by 32nd Degree (including without limitation any data representing or embodying any or all of such Client's or User's Content). Intellectual Property Rights in any Content created or submitted by a Client or User, if any, do not confer any rights of access to the Naming Force Site or any rights to data stored by or on behalf of the Company.
NAMINGFORCE™, 32ND DEGREE™ and all other 32nd Degree graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the "Marks") of 32nd Degree in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with 32nd Degree and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Conduct by Users; Prohibited Conduct.
Each User and each Client hereby agrees that it shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Naming Force Site any Content that infringes or violates any third party rights, including without limitation any Intellectual Property Rights, or that constitutes any other Person's Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, a 32nd Degree employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Naming Force Site any Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Naming Force Site any Content, as determined by 32nd Degree at its sole discretion, that is harmful, threatening, abusive, offensive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, causes tort, or is racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Naming Force Site any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or upload, post, email or otherwise transmit to or via the Naming Force Site any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Naming Force Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Naming Force Site or servers or networks connected to the Naming Force Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Naming Force Site; (ix) attempt to gain access to any other User's account or password; or (x) "stalk", abuse or attempt to abuse, or otherwise harass another User; (xi) charge any third party for use of the Naming Force Site; (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Naming Force Site or any of its algorithms that are utilized in connection with the Naming Force Site; (xiii) use any computer programs, scripts, macros or bots or any other automated system to automatically generate or automatically submit Name Suggestions; (xiv) User any software or method to hide or alter your true geographical origin (such as IP address) from Naming Force, or (xv) take any action in respect of Selecting a Name Suggestion submitted by a User or cooperate with any Client in respect of Selecting a Name Suggestion with the intended effect of or for the purpose of avoiding the payment of a Naming Award or to otherwise effect a refund or repayment of a Naming Award to any Client. Any violation by a User or a Client of the terms of the foregoing may result in immediate and permanent suspension or cancellation of such User's or Client's account and the forfeiture of any amounts otherwise due to such User or Client from the Company. Users are prohibited from making attempts to bypass the duplicate name submission detection and name requirement restriction logic. Users are prohibited from creating and using multiple Namer accounts. Any violation of this agreement can result in a Namer account being disabled and for the User to be banned from competing on Naming Force.
Copyright Infringement Complaints.
The Company respects the intellectual property rights of others and prohibits Users from uploading, posting or otherwise transmitting on the Naming Force Site any materials that violate another party's Intellectual Property Rights or that constitutes another Person's Proprietary Information. Any infringing materials posted by any User or Client can be identified and removed pursuant to 32nd Degree's compliance with the Digital Millennium Copyright Act (the "DMCA"). Each User and each Client agrees to comply with such process in the event it is involved in any claim of copyright infringement to which the DMCA may be applicable.
Repeat Infringer Policy.
In accordance with the DMCA and other applicable law, 32nd Degree has adopted a policy of terminating, in appropriate circumstances and at 32nd Degree's sole discretion, Users who are deemed to be repeat infringers. 32nd Degree may also at its sole discretion limit access to the Naming Force Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights or who disclose Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise are or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.
Monitoring User Content.
32nd Degree is not responsible or liable in any manner for any Content posted by Users of Clients on the Naming Force Site. The Company does not control and is not responsible for any Content posted, transmitted or shared by Users and Clients on the Naming Force Site and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be encountered by Users or Clients on the Naming Force Site. The Company is not responsible for the conduct, whether online or offline, of any User or Client on the Naming Force Site.
Disputes Between Users.
As a condition of access to the Naming Force Site, each User and each Client hereby release 32nd Degree (and all of 32nd Degree's shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Content submitted, stored or transported using the Naming Force Site and any dispute a User or Client may have with another User or Client; including, without limitation, any claim that a User or Client or any Content submitted by a User or Client infringes upon any Intellectual Property Rights or constitutes another Person's Proprietary Information. Each User and each Client further acknowledges and agrees that: (a) 32nd Degree will have the right but not the obligation to resolve disputes between or among Users and Clients relating to the Naming Force Site, and 32nd Degree's resolution of any particular dispute shall not create an obligation to resolve any other disputes; (b) to the extent 32nd Degree elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Naming Force Site and will not make judgments regarding legal issues or claims; (c) 32nd Degree's resolution of such disputes will be final with respect to the Naming Force Site and any Naming Award or Naming Fee, or the allocation of any payments; and (d) each User and each Client hereby releases 32nd Degree (and 32nd Degree's shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with 32nd Degree's resolution of disputes relating to the Naming Force Site.
ALL DATA (INCLUDING, BUT NOT LIMITED TO, NAME SUGGESTIONS, CONTESTS, CONTENT AND USER ACCOUNT INFORMATION) ON THE COMPANY'S SERVERS IS SUBJECT TO DELETION, ALTERATION, TRANSFER AND BACK-UP BY THE COMPANY AT ANY TIME FOR ANY REASON OR NO REASON, IN 32ND DEGREE'S SOLE DISCRETION. EACH USER AND EACH CLIENT HEREBY ACKNOWLEDGES THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS SUCH USER OR CLIENT MAY HAVE WITH RESPECT TO CONTENT POSTED BY IT ON THE NAMING FORCE SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT BY SUCH USER OR CLIENT OR ANY THIRD PARTY, 32ND DEGREE DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO THE DATA RESIDING ON THE COMPANY'S SERVERS.
EACH USER AND EACH CLIENT ACKNOWLEDGES AND AGREES THAT 32ND DEGREE HAS THE RIGHT, BUT NOT THE OBLIGATION, TO CHANGE, MODIFY, INTERRUPT, DISABLE, SUSPEND OR TERMINATE ACCESS TO ALL OR ANY PORTION OF THE CONTENT (INCLUDING CONTENT POSTED OR SUBMITTED BY SUCH USER OR CLIENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.
32ND DEGREE PROVIDES THE NAMING FORCE SITE, ALL CONTENT AND ALL RELATED SERVICES STRICTLY ON AN "AS IS" BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND. 32ND DEGREE HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATION AND WARRANTIES OR GUARANTIES OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EACH USER AND EACH CLIENT USES THE NAMING FORCE SITE AND ALL CONTENT AT THEIR OWN RISK.
SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO TO THE EXTENT THAT ANY SUCH LIMITATION IS IMPERMISSIBLE, SUCH LIMITATION MAY NOT APPLY TO YOU.
Dispute Resolution; Governing Law; Venue and Jurisdiction.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration shall be Houston, Texas and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.