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6.USER INFORMATION/PASSWORD PROTECTION
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7.PRODUCT INFORMATION; ACCURACY OF FREE OFFERS
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9.CONSENT TO RECEIVE EMAIL
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10.FEES & REFUND POLICY
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You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the FreeSamples.org Parties under this section. You further represent and warrant that all User Content fully complies with FreeSamples.org’s [Community Guidelines].
“Online Forum” is any area, site or feature offered as part of the Website that enables You (a) to submit, post, display and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other Website members or visitors. You understand and acknowledge that anything You submit or post by way of any Online Forum may be viewed on the Internet by the general public and that, therefore, You have no expectation of privacy with regard to any such submission or posting. Online Forums and features offered therein are for public and not private communications. You are, and shall remain, solely responsible for the User Content submitted and/or posted under your username, or otherwise by You, in any Online Forum and for the consequences of submitting and posting same. You understand and acknowledge that the use of User Content posted on any Online Forum is at Your own risk. FreeSamples.org is not responsible for, and FreeSamples.org does not endorse, the opinions, advice or recommendations posted or sent by users in any Online Forum, and FreeSamples.org specifically disclaims any and all liability in connection therewith. Your ability to access and view User Content within an Online Forum and/or to submit and post User Content within an Online Forum may be subject to certain age restrictions, and other restrictions, that FreeSamples.org may revise at its sole discretion, at any time, for any reason or no reason at all. Such restrictions will be posted with the Online Forum, as applicable.
You represent and warrant that you shall not use the Website or Services, including without limitation Online Forums, to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, pornographic, may constitute child pornography, may solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18, or are otherwise objectionable; (b) advocate or encourage conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or (c) violate any provision of this Agreement or any other FreeSamples.org agreement or policy (collectively, “Objectionable Content”). FreeSamples.org may monitor the Website for Objectionable Content. Without limiting any of its other remedies, FreeSamples.org reserves the right to terminate Your use of the Website and Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. FreeSamples.org, in its sole discretion, may delete any Objectionable Content from its servers. FreeSamples.org intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
FreeSamples.org imposes certain restrictions on Your use of the Website and the Services, including without limitation Online Forums. You represent and warrant that you will not: (a) violate or attempt to violate any security features of the Website or Services; (b) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (c) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (d) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (e) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (f) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (g) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the FreeSamples.org Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
(a)Compliance with Law
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. THE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS RESTS SOLELY WITH YOU.
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(c)Copyrighted Materials; Copyright Notice
All content and other materials, with the exception of User Content, available through the Website and Services, including without limitation the Shop 4 Freebies logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by FreeSamples.org or are the property of FreeSamples.org’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2008 to the present, FreeSamples.org. ALL RIGHTS RESERVED.
(d) DMCA Policy
If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want FreeSamples.org to delete, edit, or disable the material in question, you must provide FreeSamples.org with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 FreeSamples.org to locate the material; (d) information reasonably sufficient to permit FreeSamples.org to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to FreeSamples.org’s designated agent at:
16.DISCLAIMERS; LIMITATION OF LIABILITY
FreeSamples.org, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, FreeSamples.org, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER FreeSamples.org NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER FreeSamples.org NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE OR SERVICES.
(b)YOUR RESPONSIBILITY FOR DAMAGE
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD FreeSamples.org OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
(c)LIMITATION OF LIABILITY
THE LIABILITY OF FreeSamples.org AND ITS LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FreeSamples.org OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO FreeSamples.org OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF FreeSamples.org AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL $250. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN FreeSamples.org AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND FreeSamples.org OR BETWEEN YOU AND ANY OF FreeSamples.org’S ITS LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. FreeSamples.org’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
17.YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other FreeSamples.org policies, and with any applicable laws or regulations.
18.INDEMNITY BY YOU
You agree to defend, indemnify and hold harmless FreeSamples.org and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Industry Professionals (collectively, the “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website or Services; or (iii) Your provision to FreeSamples.org or any of the Indemnified Parties of information or other data.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
19.GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Los Angeles, California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
(a)Requirement of Arbitration.
You agree that any dispute, of any nature whatsoever, between You and FreeSamples.org arising out of or relating to the Website, Services, or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Los Angeles, California unless You and FreeSamples.org mutually agree to a different arbitrator, who shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS’ fee) to the prevailing party, but not attorney’s fees.
(b)Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not preclude You or FreeSamples.org from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or FreeSamples.org from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, FreeSamples.org RESERVES THE RIGHT TO, IN FreeSamples.org’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
(b)Automatic Termination Upon Breach By You
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You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to FreeSamples.org notice of Your intention to do so, in the manner required by this Agreement.
(d)Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, FreeSamples.org may, but has no obligation to, in FreeSamples.org’s sole discretion, delete from FreeSamples.org’s systems all User Content, Your Personal Information and any other files or information that You made available to FreeSamples.org or that otherwise relate to Your use of the Website or Services. Subsequent to termination, FreeSamples.org reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP mapping and direct contact with Your Internet Service Provider.
If FreeSamples.org, in FreeSamples.org’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, FreeSamples.org will be entitled to recover from You as part of such legal action, and You agree to pay, FreeSamples.org’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The FreeSamples.org Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1-3, 6-8, 13-19 and 21 will survive any termination of this Agreement. For clarification, termination of this Agreement will not relieve You of Your obligation to pay any fees owed FreeSamples.org.
(a)Entire Agreement; Amendment
This Agreement constitutes the entire agreement between FreeSamples.org and You concerning Your use of the Website. This Agreement and any other written agreements executed between You and FreeSamples.org constitute the entire agreement concerning Your use of the Services. This Agreement may only be modified by a written amendment signed by an authorized executive of FreeSamples.org or by the unilateral amendment of this Agreement by FreeSamples.org and by the posting by FreeSamples.org of such amended version.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of FreeSamples.org. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
You and FreeSamples.org are independent Industry Professionals, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
Except for the FreeSamples.org Parties as and to the extent set forth in Sections 11, 14, 16 and 20(e), and FreeSamples.org’s licensors and suppliers as and to the extent expressly set forth in Section 18, there are no third-party beneficiaries to this Agreement.
You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to FreeSamples.org and FreeSamples.org’s licensors and suppliers, and would therefore entitle FreeSamples.org or FreeSamples.org’s licensors or suppliers, as the case may be, to injunctive relief.
All notices required or permitted to be given under this Agreement must be in writing. FreeSamples.org shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to FreeSamples.org. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH FreeSamples.org IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY FreeSamples.org OF AN EMAIL TO THAT ADDRESS. You shall give any notice to FreeSamples.org by means of: (i) hand delivery; (ii) certified U.S. mail, return receipt requested, postage prepaid; or (iii) overnight courier, each as send to 468 N. Camden Drive Suite 310 Beverly Hills , CA 90210. All notices to FreeSamples.org will be deemed received as follows: (i) if by hand-delivery, on the date of delivery; (ii) if delivery by U.S. mail, on the date of receipt appearing on a return receipt card; or (iii) if by overnight courier, on the date the receipt is confirmed by such courier service. You agree that any notice received from FreeSamples.org electronically satisfies any legal requirement that such notice be in writing.