Effective as of September 9, 2011
The following describes the terms under which Quarterly, Inc. (“Quarterly,” “we,” “our,” or “us”) provide the http://quarterly.co website and subscription service (the “Quarterly Service” or the “Service”) to our members.
Changes and Modifications. Quarterly reserve the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time. Such changes will become effective thirty (30) days after they have been posted to this site or Quarterly has otherwise notified you of the change. Though Quarterly may attempt to notify you when major changes are made to this Agreement, you should periodically review the most recent version of this Agreement, which is always available from a link on our homepage. Your continued use of the Quarterly Service following the posting of changes will mean that you accept and agree to the changes. As long as you comply with this Agreement, Quarterly grants you a limited, revocable, non-exclusive, non-assignable, non-sublicensable right to access and use the Service as it is intended to be used and in accordance with this Agreement and applicable law. We grant you no other rights, implied or otherwise.
Links to Other Sites. The Service may contain links to other affiliated or independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Quarterly’s control, and Quarterly is not responsible for and does not necessarily endorse the content or practices of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
2: DESCRIPTION OF SERVICES
General Description. The Quarterly Service is a subscription service that enables members to receive customized physical items by post from influential curators of their choice.
3: CONDITIONS OF USE AND CONDUCT
As a condition of use, you agree to the following:
• You will not use the Service to harass, threaten, impersonate, or intimidate anyone.
• You will not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
• You will not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright law, trademark law, or any other law protecting intellectual property in any jurisdiction, or that violates an individual’s right to publicity or privacy.
• You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation.
• You will not transmit any worms or viruses or any code of a destructive nature.
• You will not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof.
• You will not violate any local laws in your jurisdiction (including but not limited to intellectual property laws).
• You will not use the Service for any illegal or unauthorized purpose. If you are an international visitor, you agree to comply with all local laws regarding online conduct and acceptable content.
4: PAYING FOR GOODS
5: RETURN AND REFUND POLICY
As explained above, the Service allows you to receive customized items by post. Because of the customized nature of these goods, Quarterly is unable to accept refunds or make exchanges for any good purchased through the Quarterly Service. If you have any questions regarding this policy, or if you feel that your order was incorrect due to an error on our part, please feel free to email us at firstname.lastname@example.org.
6: COPYRIGHT POLICY
If you believe that the Quarterly, or any member using the Service, has violated a copyright you claim in your work, please contact us pursuant to the Digital Millennium Copyright Act (“DMCA”) at email@example.com and review our copyright policy for more details on how to properly notify us of a DMCA issue.
7: QUARTERLY’S INTELLECTUAL PROPERTY
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Quarterly Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Quarterly Content, contained in the Service is owned, controlled, or licensed by or to Quarterly, and is protected by trade dress, copyright, patent, and trademark laws, and various other intellectual property and other rights.
Except as expressly provided in this Agreement or otherwise permitted by law, no Quarterly Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or for any commercial enterprise or purpose, without the Quarterly’s express prior written consent.
8: VIOLATION OF THIS AGREEMENT – TERMINATION
You agree that Quarterly may, in its sole discretion and without prior notice, terminate your access to the Service and/or block your future access to the Service if it determines that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Service. Please note that it is Quarterly’s policy to terminate the account of users who repeatedly violate the copyrights of third parties.
If Quarterly does take any legal action against you as a result of your violation of this Agreement, Quarterly will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Quarterly. You agree that Quarterly will not be liable to you or to any third party for termination of your access to the Service.
9: DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, INCLUDED ANY GOODS ORDERED THROUGH OR USING THE SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. QUARTERLY AND ITS SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AND LICENSORS (THE “QUARTERLY AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. QUARTERLY AND THE QUARTERLY AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICE, INCLUDED ANY GOODS ORDERED THROUGH OR USING THE SERVICE, WILL MEET YOUR REQUIREMENTS; (b) THE SERVICE, INCLUDED ANY GOODS ORDERED THROUGH OR USING THE SERVICE, WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; © CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE OR RELATED SOFTWARE WILL BE CORRECTED.
ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED, VIEWED, SHARED, OR OTHERWISE ACCESSED OR ORDERED THROUGH THE SERVICE IS ACCESSED OR ORDERED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULT FROM THE DOWNLOADING, VIEWING, SHARING, OR OTHERWISE ACCESSING OF SUCH MATERIAL. NO ADVICE, REPRESENTATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM QUARTERLY OR THROUGH THE HTTP://QUARTERLY.CO WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
10: LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT QUARTERLY AND THE QUARTERLY AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY DISMEMBERMENT YOU MAY SUFFER; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CHANGES THAT QUARTERLY MAY MAKE TO THE SERVICE, INCLUDED ANY GOODS ORDERED THROUGH OR USING THE SERVICE; (b) ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICE; or © THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY CONTENT MAINTAINED THROUGH THE SERVICE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU SPECIFICALLY ACKNOWLEDGE THAT QUARTERLY AND THE QUARTERLY AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
11: EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, QUARTERLY AND THE QUARTERLY AFFILIATES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You will defend, indemnify, and hold Quarterly and/or the Quarterly Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) incurred by Quarterly and/or the Quarterly Affiliates in connection with any claim arising out of your breach of the Agreement or your use of the Quarterly Service. Quarterly reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
13: GENERAL TERMS
Entire Agreement. This Agreement is the whole legal agreement between you and Quarterly. It governs your use of the Service and completely replaces any prior agreements between you and Quarterly with respect to the Service. You may also be subject to additional terms and conditions that may apply when you use or purchase other services from Quarterly and affiliated services.
Governing Law. You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the State and Federal courts in Los Angeles County, California, and waive any objection to such jurisdiction or venue.
Dispute Resolution. In the event of any controversy or dispute between Quarterly and you arising out of or in connection with your use of the Quarterly Service, Quarterly will attempt, promptly and in good faith, to resolve the dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Statute Of Limitations. You agree that, regardless of any statute or law to the contrary, any claim you may have under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
Severability of Terms; Non-waiver of Terms; Assignment. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Quarterly does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver or relinquishment of our rights. Quarterly may assign or delegate all rights and obligations under the Agreement, fully or partially.