1. Acceptance of Terms.
2. Registration and Eligibility.
While Marker has implemented measures to safeguard your personal information and prevent unauthorized access, use, or disclosure, transmissions on the Internet are always vulnerable to attack and are not guaranteed to be secure. In the event of a security breach or other unintentional disclosure, Marker is not liable for any disclosure of personal information that may occur.
You may not select or use as a User ID a name subject to any rights (including, without limitation, trademark or personal rights) of a person or entity without appropriate authorization, or use as a User ID a name that is offensive, vulgar or obscene. You shall not provide false personal information to Marker or create any account for anyone other than yourself without such person's permission. Use of a User ID that is the name of another person with intent to impersonate that person is strictly prohibited.
3. User Content.
You alone are solely responsible for any content (including, without limitation, any information, comments, data, text, photographs, videos, audio clips, software, scripts, graphics, and interactive features generated) you provide or make accessible to Marker ("User Generated Content"). You assume all risks associated with User Generated Content, including anyone's reliance on its accuracy or reliability, or any disclosure by you of information that makes you personally identifiable. You represent and warrant that you have the necessary permissions to use and authorize the use of User Generated Content as described herein.
By submitting User Generated Content on the Site or otherwise through the Service, you hereby grant Marker a world-wide, non-exclusive, royalty-free, sub-licensable, transferrable right to use the User Generated Content for any purpose. This right includes, without limitation, the right to reproduce, fix adapt, modify, re-format, manufacture, circulate, publish, distribute, sell, transfer, transmit, publicly display, broadcast, store, or create derivative works from any of the User Generated Content. You expressly and irrevocably waive any claims and/or assertions against Marker or any of its users for moral rights or attribution with respect to User Generated Content. You also acknowledge and agree that you have no ownership or other property interest in any account stored or hosted by Marker, and all rights in and to such accounts are solely owned by Marker.
Marker does not pre-screen or monitor all User Generated Content, but you hereby give consent for Marker to monitor and/or record any and all activity, communications, or User Generated Content on the Site. Marker also reserves the right to disclose, edit, refuse to post or remove any User Generated Content.
4. Marker Content.
Any attempts to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, algorithms, or underlying ideas of any part of the Service, including, without limitation, the application programming interface ("API") are strictly prohibited, as well as any disclosure of same to third parties.
Marker retains all proprietary rights in and to the Site and Service, including, without limitation, visual and interactive features, graphics, designs, computer code, API, software, and all other elements and components of the Service. Marker also owns copyrights, trademarks, service marks, trade names, and other intellectual property rights throughout the world associated with Marker. You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any Marker content, in whole or in part, except as expressly authorized by Marker.
6. Rules and Conduct.
You shall not post, distribute or facilitate distribution of any User Generated Content through the Service, or take any action through the Service, that:
a. Infringes any patent, trademark, trade secret, copyright, right of publicity or any other proprietary right of any other person or entity or violates any contractual duty;
b. Removes any copyright, trademark or other proprietary rights notices contained on the Service or in posted Content.
c. Is knowingly false, misleading, untruthful, inaccurate, defamatory, or libelous;
d. Sends bulk emails, spam, surveys, or other mass messaging for commercial or non-commercial purposes;
e. Solicits personal information from minors, or submits or transmits pornography;
f. Uses the Service to threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
g. Is offensive, vulgar, or obscene;
h. Serves to record, process, or mine information about other users;
i. Impersonates any person or entity, including any employee or representative of Marker;
j. Contains viruses or any other computer codes, files, or programs that are designed or intended to disrupt, disable, damage, limit or interfere with the proper function of any software, hardware, or equipment or to gain unauthorized access to any system, data, password, or other information of Marker or any third party;
k. Uses third-party software to intercept or collect information from or through the Site;
l. Exploits the Service or any of its parts including, without limitation, the API, for any commercial purpose;
m. Is intended disrupt the Site or Service in any way; or
n. Violates any applicable law or regulation.
Nothing herein creates any obligation for Marker to police, track, or otherwise monitor User Generated Content, including, without limitation, information entered during registration, emails, comments, profile information, and/or photos.
7. Notification of Infringement Relating to Copyright or Other Intellectual Property.
a. Notifications. If you believe that a work protected by a U.S. Copyright which you own has been posted or stored on the Site or Service without authorization, please notify Marker's designated agent ("Agent"):
Marker Copyright Agent
1355 Market St, Suite 488
San Francisco, CA 94103
Please provide the Agent with a notification containing the following information (the "Notice"):
i. A statement by you identifying the material on the Site or Service that you claim is infringing, with enough detail that it may be located. If you intend to include multiple copyrighted works in a single Notice, please provide the Agent with a list of such works;
ii. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, if any, or the law;
iii. A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (1) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
iv. Your name, address, telephone number, and email address; and
v. Your physical or electronic signature.
Marker will remove the infringing Content, subject to the procedures outlined in the Digital Millennium Copyright Act (DMCA).
b. Counter-Notifications. If Marker removes or disables User Generated Content posted by you in response to an infringement notice, Marker will make reasonable attempts to contact you. If you feel that your material does not constitute infringement, you may provide Marker with a counter- notification by written communication to Marker's Agent.
Please provide the Agent with a notification containing the following information (the "Counter-Notice"):
i. A statement by you identifying the material on the Site or Service that was removed or to which access has been disabled, and its location before it was removed or disabled, with enough detail so that it may be identified. If multiple copyrighted works are covered by a single counter-notification, please provide the Agent with a list of such works;
ii. A statement by you that you consent to U.S. federal court jurisdiction for adjudication of the matter;
iii. A statement by you declaring under penalty of perjury that the information in your Counter-Notice is accurate and that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner and that the material was removed in error or by misidentification;
iv. Your name, address, telephone number, and email address; and
v. Your physical or electronic signature.
Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, it is recommended that you seek the advice of an attorney.
8. Third Parties.
The Service and User Generated Content available through the Service may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of Marker, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, the Internet as a whole, and offline in-person entities. You agree and acknowledge that accessing third party websites done at your own risk. Marker does not control or endorse any third party site, and is not responsible for the availability, content, or security of such third party sites.
Marker may, at its sole direction, close your account, suspend your ability to use certain features of the Service, and/or ban you altogether from the service for any or no reason and without notice to you or liability of any kind. Any failure by Marker to exercise or enforce any right or provision of the Terms of Service does not constitute a waiver of such right or provision.
10. Warranty Disclaimer.
YOU AGREE THAT YOUR USE OF THE SERVICE IS FULLY VOLUNTARY, AND AT YOUR OWN RISK. THE SITE, SERVICE, CONTENT, AND LINKS ARE PROPVIDED ON AN "AS IS" BASIS, AND THE USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MARKER EXPRESSLY DISCLAIMS ALL: (1) EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS; (2) EXPRESS AND IMPLIED WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE AND SERVICE; (3) EXPRESS AND IMPLIED WARRANTIES FOR OTHER SERVICES AND/OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE MARKER SITE, INCLUDING WITHOUT LIMITATION, ALL SERVICES AND/OR GOODS ACCESSED, PURCHASED, OR OTHERWISE ACQUIRED THROUGH ANY LINKS TO EXTERNAL SITES ON THE MARKER SITE; AND (4) EXPRESS AND IMPLIED WARRANTIES REGARDING COMPUTER VIRUSES AND/OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE MARKER SITE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT THEY RELATE TO IMPLIED WARRANTIES AND/OR ARE LIMITED BY LAW.
MARKER HAS NO CONTROL OVER AND NO DUTY TO TAKE ANY ACTION REGARDING WHICH USERS GAIN ACCESS TO THE SERVICE, WHAT CONTENT YOU ACCESS VIA THE SERVICE, WHAT EFFECT SUCH CONTENT MAY HAVE ON YOU, HOW YOU INTERPRET OR USE THE CONTENT, OR WHAT ACTIONS YOU TAKE AS THE RESULT OF EXPOSURE TO SUCH CONTENT.
11. Limitations of Liability.
UNDER NO CIRCUMSTANCES SHALL MARKER BE LIABLE FOR: (1) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY ASPECT OF YOUR USE OF THE MARKER SITE OR SERVICE, INCLUDING WITHOUT LIMITATION, (A) MISUSE, (B) INABILITY TO USE, (C) INTERRUPTION OF USE, (D) SUSPENSION OF USE, (E) MODIFICATION, (F) ALTERATION, (G) SECURITY BREACH OR (H) TERMINATION OF THE MARKER SITE OR SERVICE.
Further, Marker shall not be liable for damages or losses incurred from any and all goods, services and/or advice accessed, purchased, or otherwise acquired by or through any links on the Marker Site to external sites.
These limitations shall apply to the fullest extent of the law. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitations may only apply to you to the extent they are limited by law.
You also acknowledge and agree that the sole exclusive remedy available to you for any dispute with Marker under this agreement is to cease use of the Service and cancel all accounts registered to you.
You remain solely responsible for User Generated Content , and agree to indemnify and hold harmless Marker with respect to any claim based upon User
13. Choice of Law and Venue.
Any claim, cause of action, or dispute that might arise between you and Marker will be governed by California law without regard to conflict of law provisions. For any claim brought by either party, you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within San Francisco County, California.
Marker's failure to act or decision not to take action with respect to a violation by you or others does not waive its right to act with respect to subsequent or similar violations.
15. General Information.