Hitpost, Inc.
WEB SITE TERMS AND CONDITIONS
Last Revised: December 5, 2010
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE THIS WEB SITE.
These terms and conditions of use (“Site Terms”) apply solely to your access and use of the Web site of Hitpost, Inc. (“Hitpost”) located at www.hitpost.com (the “Site”). These Site Terms do not alter in any way the terms or conditions of any other agreement you may have with Hitpost for the Services (as defined below). If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Site Terms on such entity’s behalf, and that such entity agrees to indemnify you and Hitpost for violations of these Site Terms.
Hitpost reserves the right to change or modify any of the terms and conditions contained in the Site Terms or any policy or guideline of the Site, at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting of the revisions on the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of this Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Site Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended Site Terms, you must stop using the Site.
If you have any question regarding the use of the Site, please refer first to Frequently Asked Questions. All other questions or comments about the Site or its contents should be directed to support@hitpost.com.
Privacy Policy
Please refer to our Privacy Policy for information on how Hitpost collects, uses and discloses personally identifiable information from its users.
Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Hitpost policies, Hitpost grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in mentioned in the Terms of Service to access and use the Service using a Hitpost supported web browser (such as Mozilla Firefox or Microsoft Internet Explorer) or mobile device solely for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose. You understand that while at times you may “earn” "buy" or "purchase" (a) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use in the Service; or (b) virtual in-game items (together with virtual currency, "Virtual Items"); these real world terms are only being used as shorthand. You do not in fact "own" the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. Rather, you may purchase a limited license to use the Service, including software programs that occasionally manifest themselves as these items. The purchase and sale of the limited license referred to in these Terms of Service is a completed transaction upon receipt of your direct payment or a third party virtual currency like Facebook Credits. Any "virtual currency" balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
Virtual Items and Currency
Hitpost owns, has licensed, or otherwise has rights to use all of the content that appears in the Service. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service, including without limitation the Virtual Items appearing or originating in any Hitpost application, whether “earned” in an application or “purchased” from Hitpost, or any other attributes associated with an Account or stored on the Service. Hitpost prohibits and does not recognize any purported transfers of Virtual Items effectuated outside of the Service, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Service, unless otherwise expressly authorized by Hitpost in writing. Accordingly, you may not sublicense, trade, sell or attempt to sell in-game Virtual Items for "real" money, or exchange Virtual Items for value of any kind outside of a game, without Hitpost's written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
Services
Hitpost provides you with the latest information about, access to and the ability to comment on all major sporting and related activities (the “Services”).
You agree to: (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms on the Site (“Registration Data”); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Registration Data, and any other information you provide to Hitpost, to keep it accurate, current and complete; and (iv) accept all risks of unauthorized access to the Registration Data and any other information you provide to Hitpost.
User Content
You or other users may create, post, link, store or otherwise make available via the Site service provider reviews, information, text and/or other materials on the Site (“User Content”). You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:
Hitpost takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Hitpost liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
Enforcement of the rules set forth in these Site Terms is solely at Hitpost’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules.
Hitpost is not liable for any statements, representations, User Content or Third Party Content (as defined below) provided by its users in any public forum. Although Hitpost has no obligation to screen, edit or monitor any of the User Content posted, Hitpost reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies of, and replacing, any User Content you post or store on the Site, at your sole cost and expense.
If you post User Content to the Site, unless we indicate otherwise, you grant Hitpost a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media on or in connection with the Site. You grant Hitpost and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that: (i) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Site; (ii) the User Content is accurate; and (iii) use and posting of the User Content you supply does not violate these Site Terms and will not violate any rights of or cause injury to any person or entity.
FEES AND PURCHASE TERMS
In the Service you may purchase, with "real world" money, a license to use Virtual Items and or other goods or services. You may also obtain a license to use Virtual Items by redeeming third party virtual currency, such as Facebook Credits.
PURCHASES OR REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY TO ACQUIRE A LICENSE TO USE VIRTUAL ITEMS ARE NON-REFUNDABLE.
You can license Virtual Items by visiting the purchase page in one of our applications, providing your billing information, confirming the particulars of your purchase and re-affirming your agreement to these Terms. When you purchase a license to Virtual Items from our Service, We may send you a confirmatory e-mail that will contain details of the items you have ordered. Please check that the details in the confirmatory e-mail are correct as soon as possible and maintain a copy of it for your records. Hitpost keeps records of transactions in order to deal with any subsequent queries. If you purchase Facebook Credits from Facebook, you are agreeing to Facebook’s Payment Terms and Hitpost is not a party to the transaction. For Virtual Items, your order will represent an offer to us to purchase a license for the relevant service(s) which will be accepted by us when We make the Virtual Items available in your account for you to use in our games or debit your credit card, whichever comes first. Your license to Virtual Items for use in Hitpost games is a service provided by Hitpost that commences upon acceptance by Hitpost of your purchase or redemption of third party virtual currency. By ordering a license to use Virtual Items you agree and accept that Hitpost will provide it to you promptly following completion of your purchase. If you reside in the European Union and you purchase a product or service from Hitpost, you may have the right to withdraw from a purchase within seven calendar days, commencing on the day after the date of purchase (the "Cooling Off Period"). However, you lose your right of withdrawal if the performance of the services begins before the end of the Cooling Off Period. Accordingly, please note that if you purchase a license to use Virtual Items from Us, your right of withdrawal is lost as the performance of our services begins promptly once your purchase is completed.
Third Party Content
Hitpost provides third party content on the Site and provides links to Web pages and content of third parties (collectively the “Third Party Content”). Notwithstanding any terms to the contrary in these Site Terms or otherwise on the Site: (i) Hitpost does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content including, but not limited to, regarding its accuracy or completeness; and (ii) you acknowledge and agree that Hitpost is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained on the Site (or made available via the Site) at their own risk.
*** All services and products offered by service providers constitute Third Party Content.
Hyperlinks
You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Hitpost or any of the Services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Hitpost logo or other proprietary graphic of Hitpost to link to this Site without the express written permission of Hitpost. Further, you may not use, frame or utilize framing techniques to enclose any Hitpost trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Hitpost’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Hitpost or any third party.
Hitpost makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site or Web sites linking to the Site. Such sites are not under the control of Hitpost and Hitpost is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Hitpost provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Hitpost of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
Advertisements and Promotions; Third Party Products and Services
Hitpost may run advertisements and promotions from third parties on the Site or may otherwise provide information about or links to third-party products or services on the Site. Your business dealings or correspondence with or participation in promotions of such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Hitpost is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non- Hitpost advertisers or third party information on the Site.
Copyright and Limited License
Unless otherwise indicated in the Site, the Site and all content and other materials on the Site, including, but not limited to, Hitpost’s logo and all designs, text, graphics, pictures, information, data, software and the selection and arrangement thereof (collectively, the “Site Materials”) are the proprietary property of Hitpost or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Site and electronically copy, (except where prohibited without a license) and print to hard copy portions of the Site Materials (except Third Party Content) for your informational, non-commercial and personal use only. Such license is subject to these Site Terms and does not include: (i) any resale or commercial use of the Site or the Site Materials therein; (ii) the distribution, public performance or public display of any Site Materials; (iii) modifying or otherwise making any derivative uses of the Site and the Site Materials (or any portion thereof); (iv) use of any data mining, robots or similar data gathering or extraction methods; (v) downloading (other than the page caching) of any portion of the Site, the Site Materials or any information contained therein, except as expressly permitted on the Site; or (vi) any use of the Site or the Site Materials other than for its intended purpose. Any use of the Site or the Site Materials other than as specifically authorized in these Site Terms, without the prior written permission of Hitpost, is strictly prohibited and will terminate the license granted in these Site Terms. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Site Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
Trademarks
[Note – Please list the Hitpost trademarks], Hitpost’s logos and any other service name or slogan contained in the Site are trademarks of Hitpost and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Hitpost or the applicable trademark holder. You may not use any metatags or any other hidden text utilizing “Hitpost” or any other name, trademark or service name of Hitpost without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Hitpost may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Hitpost names and logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
Indemnification
You agree, at your sole expense, to defend, indemnify and hold Hitpost, its independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Site, the Site Materials and/or the Services; (ii) your conduct; (iii) your violation of these Site Terms or your violation of the rights of any third party; or (iv) any User Content.
Disclaimer
UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, THE SITE, THE SITE MATERIALS, ACTIVITY CONTENT, THE THIRD PARTY CONTENT, THE USER CONTENT, ANY HYPERLINKS, THE SERVICES AND ANY OTHER SERVICES AND/OR CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE (COLLECTIVELY, THE “SERVICES/CONTENT”) ARE PROVIDED TO YOU ON AN AS IS OR AS AVAILABLE BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND. WE DO NOT WARRANT THAT ANY SERVICES/CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF ANY SERVICES/CONTENT. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO ANY SERVICES/CONTENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE INCLUDING (BUT NOT LIMITED TO): (I) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (II) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT HITPOST KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. HITPOST DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE SITE MATERIALS, THE THIRD PARTY CONTENT, THE USER CONTENT, ANY HYPERLINKS, THE SERVICES OR THE SERVICES/CONTENT ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
HITPOST IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO ANY SERVICES/CONTENT. WHILE HITPOST ATTEMPTS TO MAKE YOUR ACCESS AND USE OF ANY SERVICES/CONTENT SAFE, HITPOST CANNOT AND DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES/CONTENT OR HITPOST'S SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Hitpost reserves the right to change any and all content contained in the Site and the Services at any time without notice. Reference to any services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Hitpost.
Limitation of Liability
IN NO EVENT WILL HITPOST BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES/CONTENT, YOUR CONDUCT OR THE CONDUCT OF ANY OTHER USERS (including, BUT NOT LIMITED TO, bodily injury, emotional distress, any other damages resulting from communications WITH OTHER USERS AND/OR ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM HITPOST, VIA THE SITE OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR UNAUTHORIZED ACCESS TO HITPOST’S RECORDS, PROGRAMS OR SERVICES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES/CONTENT, YOUR CONDUCT OR THE CONDUCT OF ANY OTHER USERS (including, BUT NOT LIMITED TO, bodily injury, emotional distress, any other damages resulting from communications WITH OTHER USERS AND/OR ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM HITPOST, VIA THE SITE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR UNAUTHORIZED ACCESS TO HITPOST’S RECORDS, PROGRAMS OR SERVICES) EXCEED THE AGGREGATE OF THE NET AMOUNTS RECEIVED BY US FROM YOU.
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, Hitpost has adopted a policy of terminating, in appropriate circumstances and at Hitpost’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Hitpost may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Copyright Complaints
If you believe that anything on the Site infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to receive notification of claimed infringement:
Full address of Designated Agent to which notification should be sent:
Telephone Number of Designated Agent:
Facsimile Number of Designated Agent:
E-Mail Address of Designated Agent: @_______.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including, but not limited to, costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Applicable Law and Venue
These Site Terms and your use of the Site will be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Site Terms will be filed only in the state and federal courts located in San Francisco County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Site Terms.
Termination
Notwithstanding any of these Site Terms, Hitpost reserves the right, without notice and in its sole discretion, to terminate your license to use the Site, and to block or prevent your future access to and use of the Site.
Severability
If any provision of these Site Terms is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Site Terms and will not affect the validity and enforceability of any remaining provisions.
Questions & Contact Information
Questions or comments about the Site may be directed to support@hitpost.com.