Version: 1.0

Effective Date: January 1, 2017

 

This agreement (these “Website Terms of Use”) is a legally binding agreement between you (“you” or “You”), a user of the Site, and (“Company”, “us”, “our”, and “we”), the owner and operator of https://kathyfavilla.com (the “Site”) that governs your access to and use of the Site. Certain features of the Site may be subject to additional guidelines, terms, or rules, which may be posted on the Site from time to time and which are incorporated by reference into these Website Terms of Use.

By accessing or using the Site, you are accepting these Website Terms of Use (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Website Terms of Use (on behalf of yourself or the entity that you represent).

You may not access or use the Site or accept the Website Terms of Use if you are not at least 18 years old.

If you do not agree with all of the provisions of these Website Terms of Use, do not access and/or use the Site.

  1. Access to or Use of the Site
    • Subject to these Website Terms of Use, Company grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Site solely for your own personal, noncommercial use only during the term of this agreement.
    • Certain Restrictions. The rights granted to you in these Website Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Website Terms of Use. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
    • Company reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
    • No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site.
    • Excluding any User Generated Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Neither these Website Terms of Use (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.1. Company and its suppliers reserve all rights not granted in these Website Terms of Use. There are no implied licenses granted under these Website Terms of Use.
  2. User Accounts
    • User Account Creation. In order to use certain features of the Site, you may be required to create a user account (“User Account”) by providing certain information about yourself as prompted by an account registration form. You represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your User Account at any time, for any reason, by request to the Company or by following the instructions on the Site. Company may suspend or terminate your User Account in accordance with Section
    • User Account Responsibilities. You are responsible for maintaining the confidentiality of your User Account login information (e.g. username and password) and are fully responsible for all activities that occur under your User Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your User Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from (i) your failure to comply with the above requirements or (ii) from unauthorized use of your User Account or any other breach of security, either with or without your knowledge.
    • Use of Other User Accounts.   You may not use anyone else’s account at any time, without the permission of the account holder.
    • Account Security. The Company cares about the integrity and security of your personal information. However, the Company cannot guarantee that unauthorized third parties will never be able to defeat the Site’s security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your personal information at your own risk.
  3. Privacy

For information about how the Company collects, uses, and shares your information, please review our Privacy Policy. You agree that by using the Site you consent to the collection, use, and sharing (as set forth in the Privacy Policy) of such information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by the Company.

  1. Paid Services
    • Fees. The Company reserves the right at any time to charge fees for access to the Site. However, in no event will you be charged for access to the Site unless we obtain your prior agreement to pay such charges. You may cancel your account at any time. Any fees will be posted prominently on the Site and in other appropriate locations on the Site.
    • Rates. You will pay all fees and charges incurred through your account at the rates in effect for the billing period when they are incurred. You will be billed for and pay all fees and charges. You shall pay all applicable taxes relating to use of the Site through your account.
  2. User Generated Content
    • User Generated Content.User Generated Content” means any and all information and content that a user submits to, or uses with, the Site. You are solely responsible for all of your User Generated Content. You assume all risks associated with use of your User Generated Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Generated Content that personally identifies you or any third party. You hereby represent and warrant that your User Generated Content does not violate our Acceptable Use Policy (defined in Section 5.3). You may not represent or imply to others that your User Generated Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Generated Content, you may expose yourself to liability if, for example, your User Generated Content violates the Acceptable Use Policy. Company is not obligated to backup any User Generated Content, and your User Generated Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Generated Content if you desire.
    • You hereby grant (and you represent and warrant that you have the right to grant) to Company a worldwide, non-exclusive, irrevocable, royalty-free, sublicenseable, transferable and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Generated Content solely for the purposes of including your User Generated Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Generated Content.
    • Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
      • You agree not to use the Site to collect, upload, transmit, display, or distribute any User Generated Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
      • In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable 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, subject to the parameters set forth in our robots.txt file).
    • We reserve the right (but have no obligation) to review any User Generated Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Website Terms of Use or otherwise create liability for us or any other person. Such action may include removing or modifying your User Generated Content, terminating your User Account in accordance with Section 10, and/or reporting you to law enforcement authorities.
    • If you provide Company with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
  3. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Website Terms of Use, (c) your violation of applicable laws or regulations or (d) your User Generated Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
  4. Third-Party Links & Ads; Third-Party Competitions; Other Users
    • Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads. The Company disclaims any responsibility or liability related to your access or use of any Third-Party Links & Ads.
    • Third-Party Competitions. Some users may promote competitions, promotions, prize draws and other similar opportunities on the Site (“Third-Party Competitions“). The Company is not the sponsor or promoter of these Third-Party Competitions and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any of promotion of these Third-Party Competitions. If you wish to participate in any of these Third-Party Competitions, you are responsible for reading and ensuring that you understand the applicable rules and any eligibility requirements and are lawfully able to participate in such Third-Party Competitions in your country of residence.
    • Other Users. Each Site user is solely responsible for any and all of its own User Generated Content. Because we do not control User Generated Content, you acknowledge and agree that we are not responsible for any User Generated Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Generated Content. Your interactions with other Site users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
    • You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads).
  5. Disclaimers

THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

  1. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF [NUMBER] US DOLLARS (U.S. $[NUMBER]). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

  1. Term and Termination.   Subject to this Section, these Website Terms of Use will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your User Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Website Terms of Use. Upon termination of your rights under these Website Terms of Use, your User Account and right to access and use the Site will terminate immediately. You understand that any termination of your User Account may involve deletion of your User Generated Content associated with your User Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Website Terms of Use, including for termination of your User Account or deletion of your User Generated Content. Even after your rights under these Website Terms of Use are terminated, the following provisions of these Website Terms of Use will remain in effect: Sections 2 through 1.5, Section 5 and Sections 6 through 12.
  2. Copyright Policy.

Company respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act) must be provided to our designated Copyright Agent:

  1. your physical or electronic signature;
  2. identification of the copyrighted work(s) that you claim to have been infringed;
  3. identification of the material on our services that you claim is infringing and that you request us to remove;
  4. sufficient information to permit us to locate such material;
  5. your address, telephone number, and e-mail address;
  6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
  7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

 

Please note that, pursuant to the Digital Millennium Copyright Act, any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

 

The designated Copyright Agent for Company is: pending.

 

  1. General
    • These Website Terms of Use are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any 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 the changes described in the notice. Any changes to these Website Terms of Use will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
    • Arbitration.
      • Claim Procedure. For any dispute you have with the Company, you agree to first contact the Company and attempt to resolve the dispute informally. If the Company has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this agreement by binding arbitration by the American Arbitration Association (“AAA“) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.
      • Arbitration Location. Unless you and the Company agree otherwise, the arbitration will be conducted in the county where you reside.
      • Arbitration Fees. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules.
      • Arbitration Award. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
      • Injunctive Relief. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.
      • Waiver of Class or Consolidated Actions. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims.
      • Waiver of Jury Trial. You agree that, by entering into these terms, you and the Company are each waiving the right to a trial by jury or to participate in a class action.
    • The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
    • Electronic Communications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
    • Entire Terms. These Website Terms of Use constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Website Terms of Use shall not operate as a waiver of such right or provision. The section titles in these Website Terms of Use are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Website Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of these Website Terms of Use will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Website Terms of Use, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Website Terms of Use. The terms and conditions set forth in these Website Terms of Use shall be binding upon assignees.
    • Copyright/Trademark Information. Copyright © 2007 kathyfavilla.com. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
    • Contact Information:

Kathy Favilla,
Owner and operator
8750 Coffman Path
Inver Grove Heights, MN 55076 USA
Telephone:651-455-7379
Email: info@kathyfavilla.com