Terms of Use

 

Date Revised and Posted: August 19, 2008

  1. TERMS OF USE ENFORCEABILITY. You acknowledge and agree that you have freely and voluntarily entered into these Terms of Use, and have read and understood each and every provision, including, but not limited to, your rights, obligations, and applicable terms and conditions as set forth herein. You acknowledge and agree that any interpretation of these Terms of Use shall not be construed against WhichDraft.com by virtue of having drafted these Terms of Use.
  2. DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND ITS CONTENTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND WHICHDRAFT.COM DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE OR ITS CONTENTS, INCLUDING, WITHOUT LIMITATION, ANY REGARDING OR ARISING FROM: (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (II) COURSE OF DEALING, COURSE OF USAGE, OR COURSE OF PERFORMANCE; OR (III) TIMELINESS, ACCURACY, RELIABILITY OR CONTENT OF THE SITE AND ANY INFORMATION PROVIDED THROUGH THE SITE UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WHICHDRAFT.COM DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF TRANSACTIONS EXECUTED ON THE SITE OR THE RESULTS TO BE OBTAINED FROM THE USE OF THE INFORMATION ON THE SITE, AND INFORMATION ON THE SITE IS NOT INTENDED TO PROVIDE LEGAL, FINANCIAL, ACCOUNTING, TAX OR OTHER ADVICE, AND SHOULD NOT BE RELIED UPON IN THAT REGARD.
  3. LIMITATION OF LIABILITY.

    • Excluded Damages. YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WHICHDRAFT.COM BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES (COLLECTIVELY, THE “DAMAGES”), ARISING OUT OF YOUR USE OR INABILITY TO USE THE SITE. BY WAY OF EXAMPLE AND NOT OF LIMITATION, WHICHDRAFT.COM IS NOT LIABLE FOR DAMAGES FOR: (I) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA, (II) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION, EQUIPMENT, OR PROPERTY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WHICHDRAFT.COM IS NOT LIABLE FOR THE CONDUCT OF AND INFORMATION SUPPLIED BY OTHER SITE USERS OR THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT) AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
    • Enforceability. THE FOREGOING SHALL APPLY REGARDLESS OF: (A) THE NEGLIGENCE OF WHICHDRAFT.COM; (B) THE GROSS NEGLIGENCE OF WHICHDRAFT.COM; (C) ANY FAILURE OF AN ESSENTIAL PURPOSE; AND (D) WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THIS PROVISION ENTITLED “LIMITATION OF LIABILITY” APPLIES EVEN IF WHICHDRAFT.COM HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, WHICHDRAFT.COM’S LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW, AND IN NO EVENT SHALL WHICHDRAFT.COM’S CUMULATIVE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
    • Third Parties. WHICHDRAFT.COM IS NOT IN ANY WAY RESPONSIBLE FOR ANY INFORMATION, PRODUCTS, OR SERVICES ACCESSIBLE THROUGH OTHER WEB SITES THAT LINK TO OR FROM THE SITE, AND WHICHDRAFT.COM SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER IN RELATION TO ANY OF THE FOREGOING. WHICHDRAFT.COM NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY OF ANY THIRD PARTY MATERIAL(S), AND YOU AGREE THAT WHICHDRAFT.COM IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF, OR RELIANCE ON, SUCH MATERIAL(S), NOR FOR ANY FAILURE TO ENFORCE ANY OF WHICHDRAFT.COM’S RIGHTS UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AGAINST ANY SITE USER OR THIRD PARTY.
    • Limitation on Liability of Parents, Subsidiaries, Shareholders, Officers, Directors, Members, Employees and Agents. You shall not make any claim against the parents, subsidiaries, affiliates, members, shareholders, officers, directors, employees or agents of WhichDraft.com but instead shall look solely to the assets of WhichDraft.com for satisfaction of any liability of WhichDraft.com under these Terms of Use.
  4. YOUR USE OF THE SITE.

    • Your Right to Use the Site. WhichDraft.com grants you a non-exclusive, non-transferable, non-sublicenseable, limited, and revocable right to access, use and display the Site on any computers or other electronic display devices of which you are a user, subject to all terms and conditions in the Terms of Use, including, without limitation, all terms and conditions governing passwords and access to secure areas of the Site as provided to you by WhichDraft.com from time to time, for which access you must first be granted the prior written consent of WhichDraft.com. You represent and warrant that you are at least eighteen (18) years of age.
    • Passwords. You shall be solely responsible for protecting the confidentiality of your password(s). You agree to accept full responsibility for the acts and omissions of any third party that accesses the Site, including, without limitation, any portion of the Site through use of your password as if such acts and omissions were your own.
    • Changes to the Site and Premium Features. WhichDraft.com shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment needed for access or use.
  5. CHANGED TERMS. WhichDraft.com shall have the right at any time to amend these Terms of Use. Such amendments shall be effective immediately upon notice, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which you may obtain notice. Any use of the Site by you after notice shall be deemed to constitute acceptance by you of such amendments. Please note that access to premium site features may be subject to a fee and additional agreement(s) which WhichDraft.com will provide to you for your approval before charging you.
  6. EQUIPMENT. You shall be responsible for paying for, obtaining and maintaining all software, telephone, computer hardware and any other equipment needed for access to and use of the Site.
  7. YOUR CONDUCT.

    • Lawful Purposes. You shall use the Site for lawful purposes only. You shall not post or transmit through the Site any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. Any conduct by you that in WhichDraft.com’s sole discretion restricts or inhibits any other Site user from using or enjoying the Site will not be permitted.
    • WhichDraft.com Intellectual Property. The Site contains copyrighted material, trademarks and other proprietary information, which may include, but is not limited to, text, software, photos, video, graphics, music and sound. WhichDraft.com owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to, granted to or assigned to WhichDraft.com. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works, publicly distribute, publicly display, reproduce, publicly perform, or in any way exploit in any format whatsoever (including, without limitation, print and electronic formats) any of the Site content, in whole or in part without WhichDraft.com’s prior written authorization. You may download copyrighted material for your personal use only and for the use of the specific individuals entering into contracts with you. Except as otherwise expressly permitted under the United States copyright laws, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of WhichDraft.com and the applicable copyright owner. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
    • Works and Material You Submit to the Site. You shall not upload, post or otherwise make available on the Site any works or material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any works or material are not so protected rests entirely with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a submission. For all works or material submitted by you to the Site, you automatically grant, or warrant that the owner of such material has expressly granted, WhichDraft.com the royalty-free, perpetual, irrevocable, worldwide, fully-paid up right and license to use, reproduce, create derivative works, publicly distribute, publicly perform, publicly display, assume any sound recording rights or moral rights of attribution or integrity, transmit, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed (including, without limitation, print and electronic form, media and technology) for the full term of any copyright that may exist in such material. Except as limited under applicable law, you also permit any other Site user to access, view, store or reproduce the material for that Site user’s use consistent with these Terms of Use.
    • No Unauthorized Access and Unauthorized Activities on the Site. The Site is only publicly available for the authorized uses described in these Terms of Use. Access to the Site is not authorized for any activities that interfere or have the potential to interfere with WhichDraft.com’s possessory interest in the Site. Unauthorized activities, include, but are not limited to: any access and use of the Site for automated access, screen scraping, data acquisition and consolidation, automated offers, auction aggregations, software robots (including, without limitation, shopping bots), or recursive searching; using the Site in an attempt to break security, or so as to actually break security of any computer network (including, without limitation, the Site itself), or to access an account, message, or file which does not belong to you; using the Site for unauthorized relays through any third party systems; attempting, in any way, to interfere with or deny service to any user or any host on the Internet; using the Site for mail-bombing, which includes, without limitation, any instance where multiple messages are sent to a specific destination with the intent to render the recipient and/or the electronic system serving that recipient dysfunctional; using the Site to add or attempt to add addresses to any mailing list (yours or a third party’s); attempting to cancel, supersede, or otherwise interfere with electronic mail; using the Site to engage in flood attacks, which are defined as overburdening a recipient computer system by sending a high volume of spurious data which effectively impedes or totally disables functionality of the recipient system(s), or any other methods of denial-of-service attacks; furnishing false data on your sign-up form, contract, or online application, including, without limitation, providing fraudulent payment information; actively engaging in or authorizing making the Site or any portion thereof available as part of a “co-branded” or “private label” web site, web service, or Internet access service, or as part of a “channel” through a software or Internet service, or similar arrangements or relationships that offer or provide access to the Site from or through other web sites, web services, or Internet access services, or as part of any other web site when Framed (as defined below) and displayed as part of another web site or web service, and you shall not authorize any third party to make any of the Site available on any other web site by means of Framing (as used herein, “Frame” and “Framing” means the display of a web page (the “Framed Page”) within an HTML frame of a different web page (the “Framing Page”), where the Framed Page is not controlled by the party that publishes the Framing Page); using the Site for any unlawful purpose, in which case you acknowledge and agree that WhichDraft.com may fully cooperate with any law enforcement authorities in regards to such unlawful purposes; and any other activities that exceed the scope of WhichDraft.com’s permission to allow you to use this Site (the “Unauthorized Activities”). You acknowledge and agree that your Unauthorized Activities constitute a substantial interference with WhichDraft.com’s possessory interest in the Site, even if such Unauthorized Activities alone do not proximately cause damage to WhichDraft.com, if such Unauthorized Activities would cause such damage in combination with other Unauthorized Activities engaged in by any third party or parties. Should you engage in any Unauthorized Activity, you acknowledge and agree that such Unauthorized Activity is: (a) a breach of these Terms of Use; (b) a trespass to chattel; and (c) a violation of the U.S. federal Computer Fraud and Abuse Act.
  8. MONITORING. WhichDraft.com shall have the right, but not the obligation, to monitor the content of the Site, to determine compliance with these Terms of Use, any other agreement between you and WhichDraft.com, and any operating rules established by WhichDraft.com, as well as to satisfy any law, regulation, authorized government request, or trade association guideline. WhichDraft.com shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Site. You acknowledge and agree that any communication or material you post or transmit to the Site is, and will be treated as, non-confidential and non-proprietary. Without limiting the foregoing, WhichDraft.com shall have the right to remove any material that WhichDraft.com, in its sole discretion, finds to be in violation of these Terms of Use, may cause liability for WhichDraft.com, or is otherwise objectionable.
  9. INDEMNIFICATION. You shall indemnify and hold harmless WhichDraft.com from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, (collectively, the “Losses”) arising out of any breach by you of any of these Terms of Use, or any use by you of the Site or transmission by you through the Site, including, without limitation, unsolicited commercial electronic mail, system shut downs, retaliatory attacks or data flooding. Except as prohibited by applicable law, WhichDraft.com may set-off the amount of any Losses against any sums accruing to you under any transaction between you and WhichDraft.com. Upon receipt of any third party claim, WhichDraft.com shall have the right to assume the sole defense, at your expense, by representatives chosen by WhichDraft.com. You shall provide WhichDraft.com with such assistance, without charge, as may be requested by WhichDraft.com in connection with any such defense, including, without limitation, providing WhichDraft.com with such information, documents, records and reasonable access to you, as WhichDraft.com shall deem necessary. You shall not settle any third party claim or waive any defense without WhichDraft.com’s prior written consent.
  10. TERMINATION. Either WhichDraft.com or you may terminate these Terms of Use at any time. Without limiting the foregoing, WhichDraft.com shall have the right to immediately terminate your access to the Site in the event of any conduct by you which WhichDraft.com, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of these Terms of Use. You may terminate these Terms of Use by deleting your profile and ceasing to use WhichDraft.com, but if you use WhichDraft.com again in the future, then you will have agreed to these Terms of Use again.
  11. TRADEMARKS. “WhichDraft.com” is a trademark of WhichDraft.com, LLC. All rights reserved. All other trademarks appearing on the Site are the property of their respective owners. You gain no rights of any nature whatsoever in WhichDraft.com’s trademarks, service marks or trade names through your use of the Site.
  12. NO ENDORSEMENT OF SITE CONTENT. WhichDraft.com neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on or off the Site by anyone other than authorized WhichDraft.com employee spokespersons while acting in their official capacities, none of which provide legal advice. It is the responsibility of you to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site or through a Site user. Advice of a professional may be necessary for you regarding the evaluation of any specific information, opinion, advice or other content, particularly for legal advice on contract issues.
  13. COPYRIGHT INFRINGEMENT: TERMINATION, NOTICE AND TAKEDOWN POLICY. WhichDraft.com’s Copyright Agent for notice of claims of copyright infringement on or regarding the Site can be reached as follows:

    • Copyright Agent
      Attn: Jason Mark Anderman
      WhichDraft.com

      Phone: (973) 457-1186
      Email: requests@whichdraft.com

    • Termination of Site Access. WhichDraft.com respects the rights of copyright holders and in this regard, WhichDraft.com has adopted and implemented this policy. Under this policy, WhichDraft.com shall terminate, if commercially practicable and reasonable, Site access in appropriate circumstances for employees, Site users and account holders, who infringe the rights of copyright holders, if any. If in WhichDraft.com’s sole judgment the infringer is an innocent infringer, then WhichDraft.com shall not terminate access unless such person has repeatedly infringed copyrighted material. If WhichDraft.com determines that the infringer negligently or intentionally engaged in the infringing activity, then WhichDraft.com reserves the right to immediately terminate that infringer’s Site access.
    • Notification. If anyone believes that his or her work has been copied in a way that constitutes copyright infringement, and that work appears on the Site, or on another web site linked to the Site, then that person (the “Notifier”) should provide WhichDraft.com’s Copyright Agent a notification (a “Notification”) containing the following information under the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (the “Acts”), 17 U.S.C. §512(c)(3):

      1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
      3. Identification of the material that is claimed to be infringing 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 WhichDraft.com to locate the material;
      4. Information reasonably sufficient to permit WhichDraft.com to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
      5. A statement that the complaining party has 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
      6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    • Counter Notification. Upon receiving a Notification, WhichDraft.com will take reasonable steps to notify you or the other individual (the “Material User”) under whose direction the material resides on the Site or any other web site, if applicable, that WhichDraft.com has removed or disabled access to such material. If the Material User believes that WhichDraft.com’s removal of or disabling of access to such material was a result of mistake or misidentification, then the Material User should provide WhichDraft.com’s Copyright Agent a counter notification (a “Counter Notification”) containing the following information under the Acts, 17 U.S.C. §512(g)(3):

      1. A physical or electronic signature of the Material User;
      2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
      3. A statement under penalty of perjury that the Material User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
      4. The Material User’s name, address, and telephone number, and a statement that the Material User consents to the jurisdiction of Federal District Court for the judicial district in which such address is located, and that the Material User will accept service of process from the Notifier or his or her agent.
      Upon receipt of a Counter Notification, WhichDraft.com will provide the Notifier with a copy of such Counter Notification. WhichDraft.com will also inform the Notifier that WhichDraft.com will replace the removed material or cease disabling access to it. WhichDraft.com will then replace the removed material or cease disabling access to it unless the Notifier has filed an action seeking a court order to restrain the Material User from engaging in infringing activity relating to the material on the Site. The aforementioned responsibilities are required of WhichDraft.com in order for WhichDraft.com to comply with the Acts. If the Notifier is you, you hereby agree to provide WhichDraft.com’s Copyright Agent with immediate written notice of the filing of the above action.
    • Misrepresentations. Under the Acts, any person who knowingly materially misrepresents: (i) that material or activity is infringing, or (ii) was removed by mistake or misidentification; is liable to WhichDraft.com for any damages, including costs and attorneys’ fees, incurred by WhichDraft.com, the alleged infringer, any copyright owner, and any copyright owner’s authorized licensee, if any of such parties are injured by the misrepresentation due to reliance thereon in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. WhichDraft.com will vigorously pursue any and all rights under the Acts or under any other legal theory which WhichDraft.com may have against any person that engages in such misrepresentations.
  14. UNSOLICITED COMMERCIAL ELECTRONIC MAIL. You may not use the Site or its servers to send, relay, forward, bounce, reply, or otherwise route electronic messages to: (a) users of the Site; or (b) third parties who are not users of the Site without the prior written permission of WhichDraft.com. Permission will not be given to send, relay, forward, bounce, reply, or otherwise route unsolicited commercial email, and you may not use the Site in any way to send, relay, forward, bounce, reply, or otherwise route unsolicited commercial email to Site users or to third parties. Any message(s) you send to Site users must accurately identify the originating sender of the message(s). You acknowledge and agree that a message with a misleading, disguised, or otherwise false originating address will be deemed unsolicited commercial email.
  15. MISCELLANEOUS.

    • Entire Agreement and Amendments. These Terms of Use, collectively with WhichDraft.com’s Privacy Policy and Disclaimer, are the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter. These Terms of Use may be amended only as described above. Independent Contractors, Third Party Beneficiaries, and Subcontractors. Both parties acknowledge that they are independent contractors under these Terms of Use, and neither party, nor any of their employees or agents, has the power or authority to bind or obligate the other party. No third party is a beneficiary of these Terms of Use. Governing Law and Forum. All claims regarding these Terms of Use are governed by and construed in accordance with the Laws of the State of New Jersey, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in the State of New Jersey, regardless of the inconvenience of the forum, except that either party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. Assignment. These Terms of Use bind and inure to the benefit of the parties’ successors and assigns. These Terms of Use are not assignable, delegable, sublicenseable or otherwise transferable by you. Any transfer, assignment, delegation or sublicense by you is invalid. No Waivers, Cumulative Remedies. WhichDraft.com’s failure to insist upon strict performance of any provision of these Terms of Use is not a waiver of any of its rights under these Terms of Use. Except if expressly stated otherwise, all of WhichDraft.com’s remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices to WhichDraft.com must be sent by registered or certified mail or by overnight commercial delivery to the address set forth on the Site. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
    • Survival. Sections 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, and 15 survive any termination or expiration of these Terms of Use. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective heirs, assignees, successors, executors, trustees and administrators, as the case may be.