© 2013 ABC Empire State All Rights Reserved
1. Definitions. As used in this Visitor Agreement, any reference to the term “ABC Empire State,” refers to ABC Empire State; any reference to the term “Third Party” refers to any third party, merchant, sponsor, trade association, and product manufacturer and distributor mentioned on or linked to this Website; any reference to the term “Visitor” refers to any person or entity using or interacting with this Website.
3. Intellectual Property Rights.
a. Ownership of Intellectual Property Rights; Restrictions. All of the content and 1works of authorship contained in and on this Website, including but not limited to any and all information, design, text, images, graphics, logos, images, compilations, architecture, and data of this Website (collectively, “Content”), regardless of the form of representation thereof, are, and shall continue to be, owned exclusively by ABC Empire State or a respective Third Party, unless expressly stated otherwise on this Website, and the Content may not be copied, transmitted, displayed, published, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without the prior written consent of ABC Empire State or the respective Third Party, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C. § 107), as amended, and subject to the “Limited License” of Visitors expressly set forth herein, and nothing herein shall give Visitors any ownership rights therein by virtue of visiting this Website or otherwise constitute a waiver by ABC Empire State or any Third Party of any copyright or other intellectual property rights to the Content. ABC Empire State and Third Parties are the sole owners of their respective trademarks and service marks used on this Website unless indicated otherwise. Visitors shall not use this Website or any Content in any manner that may infringe any intellectual property rights, including without limitation, copyrights, trademarks, service marks or other proprietary rights, of ABC Empire State or any respective Third Parties, and Visitors shall not delete or otherwise remove or alter any copyright notice, trademark notice, service mark notice, or other proprietary notice contained in or on this Website.
b. Ownership of Website. ABC Empire State is the owner of this Website, including the Website name “emconsultinginc.com” (CHANGE for WEBSITE)
4. Limited License by Visitors; Limitations on Use.
a. Limited License. Notwithstanding other provisions in this Visitor Agreement, ABC Empire State, on its own behalf and on behalf of any Third Party, hereby grants Visitors a non-exclusive, non-transferable, revocable, limited license (as limited in this Visitor Agreement, “Limited License”) to access and use this Website and the Content solely for the Visitor’s personal, non-commercial use, expressly subject to, and limited by, the limitations on use set forth in this Visitor Agreement.
b. Limitations on Use. Except as expressly permitted by the Limited License, Visitors, whether on their own behalf or on behalf of any other person or entity may not and shall not:
(i) Make any commercial use whatsoever of this Website or the Content, including making any collection or use of any product listings, descriptions, prices, or images or to reproduce, duplicate, copy, sell, resell, or otherwise exploiting for any commercial purposes any portion of, use of, or access to this Website;
(ii) copy, print, transmit, display, publish, perform, sell, distribute, lease, license, lend, alter, frame, store for subsequent use or otherwise make available in any manner any Content or any portion of this Website;
(iii) create any derivative works or compilations of any Content or any portion of this Website;
(iv) interfere with or reverse engineer any software associated with this Website;
(v) download, copy, or transmit any Content for the benefit of any merchant;
(vi) use or attempt to use any engine, software, tool, agent, data, or other device or mechanism to navigate or search this Website other than the search engine and search agents provided by ABC Empire State or generally publicly available browsers;
(vii) frame, mirror, or use framing techniques on any part of this Website without ABC Empire State express prior written consent;
(viii) make any use of data extraction, scraping, mining, or other data gathering tools, or create a database by systematically downloading or storing the Content, or otherwise scrape, collect, store, or use any Content, product listings, descriptions, prices, or images, except pursuant to the Limited License granted by this Visitor Agreement;
(ix) conduct fraudulent activities on this Website;
(x) violate or attempt to violate the security of, or change or attempt to change the behavior of, this Website;
(xi) interfere with, or attempt to interfere with, service to any user, host, or network, including, without limitation, via means of submitting malware to this Website, overloading, “flooding,” “spamming,” “mailbombing”, or “crashing” this Website;
(xii) tamper with this Website or use or attempt to use any device, software, routine, or data that interferes or attempts to interfere with the working or functionality of this Website or any activity being conducted on this Website;
(xiii) send unsolicited or unauthorized email on behalf of ABC Empire State, including promotions and/or advertising of products or services;
(xiv) use this Website to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
(xv) harvest or collect personally identifiable information about other users of this Website;
(xvi) restrict or inhibit any other person from using this Website (including, without limitation, by hacking or defacing any portion of this Website );
(xvii) use this Website to advertise or offer to sell or buy any goods or services without ABC Empire State express prior written consent;
(xviii) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of this Website; or
(xix) remove any copyright, trademark, or other proprietary rights notice from this Website or the Content.
5. 1Injunctive Relief; Attorneys’ Fees. If a Visitor breaches or threatens to breach any of the covenants in the Limited License, the damages to ABC Empire State or the respective Third Party would be substantial, although difficult to ascertain, and money damages would not afford ABC Empire State or the Third Party with an adequate remedy. Therefore, if a Visitor is in breach of any provision of the Limited License, or threatens such breach, the parties hereto agree that ABC Empire State or the respective Third Party is entitled, in addition to any and all rights and remedies as would be provided by law, to specific performance, injunctive, and other equitable relief to prevent or restrain a breach of the Limited License with respect to such offending Visitor. The rights of ABC Empire State and respective Third Parties under this provision are in addition to, and not in lieu of, any and all rights that ABC Empire State and respective Third Parties may have at law or in equity to protect its business interests. Visitors hereby waive the claim or defense to an action regarding the Limited License that ABC Empire State or respective Third Parties have an adequate remedy at law, and Visitors shall not assert in any such action or proceeding the claim or defense that ABC Empire State or respective Third Parties have an adequate remedy at law. In addition, in the event that ABC Empire State or a respective Third Party incur any legal fees or otherwise takes any legal action to enforce the Limited License, ABC Empire State and the respective Third Party shall be entitled to recover from the offending Visitor, in addition to any other recovery and costs, reasonable attorneys’ fees incurred in such action or litigation, up through and including both the trial and all appellate courts.
6. No Warranty of Website Content. 1The information on this Website is for Visitors’ personal, informational purposes only. ABC Empire State does not warrant the completeness, timeliness, accuracy, completeness of the Content or of this Website or to information linked to this Website, nor does ABC Empire State warrant the absence of any viruses or other harmful elements on this Website. Visitors use the Content and this Website at their own risk.
7. 1Links to Other Websites. This Website may contain links and interactive functionality interacting with, and provide access to, the websites of Third Parties (“Third Party Websites”), over which ABC Empire State has no control. ABC Empire State makes no representations or warranties regarding, and is not responsible for and has no liability for, the functionality, reliability, actions, inactions, errors, privacy settings, privacy policies, terms, content, and presence of viruses, on and of any Third Party Website, suitability thereof for any particular purpose, or for any objectionable material found thereon. Before enabling any sharing functions of this Website to communicate with any Third Party Website or otherwise visiting any Third Party Website, ABC Empire State strongly recommends that Visitors review and understand the terms and conditions, privacy policies, settings, and information-sharing functions of each such Third Party Website. The links and interactive functionality for Third Party Websites on this Website do not constitute an endorsement by ABC Empire State of such Third Party Websites. Other websites may link to this Website with or without ABC Empire State authorization, and ABC Empire State may block any links to or from this Website. Visitors access or use Third Party Websites at their own risk.
8. Advertising of Merchant Services. This Website may provide access to or advertise certain third party merchants of products or services (“Merchants”) and provide links to websites maintained by such Merchants from which Visitors may be able to obtain information and purchase certain goods or services. ABC Empire State is not affiliated with, does not operate or control, shall not be responsible for, and makes no representations or warranties with respect to, the products or services offered by Third Parties or Merchants. Visitors access and transact with such Third Parties and Merchants at their own risk.
9. Linking to this Website. Visitors may provide links to this Website, provided that the Visitor complies with the Limited License set forth in this Visitors Agreement, provided further that the Visitor’s site does not engage in illegal or pornographic activities, and provided further that immediately upon demand by ABC Empire State, such Visitor discontinues providing such links to this Website.
10. Disclaimer Regarding Member information. ABC Empire State disclaims any responsibility for the accuracy, completeness, or legality of any information provided by members and companies who are listed on this Website.
111. Copyright Infringement Notices.
a. DMCA Policy. ABC Empire State will respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”) and will remove copyright-infringing materials in accordance with the process listed below, and Visitors agree to comply with such process in the event they are involved in any claim of copyright infringement to which the DMCA may be applicable. Visitors who believe in good faith that their copyrighted material has been infringed must provide ABC Empire State copyright agent the written information specified below. To file a DMCA notice, the copyright owner must send in a written letter by regular mail or email only. ABC Empire State reserves the right to ignore a notice that is not in compliance with the DMCA.
b. Infringement Notices. The infringement notice must include the following:
(i) Specific, detailed identification of the copyrighted work(s) believed to have been infringed;
(ii) Specific, detailed identification of the Content that a copyright owner claims is infringing upon copyrighted work with sufficient detail to enable ABC Empire State to locate that item on this Website;
(iii) Sufficient information to permit ABC Empire State to contact the copyright owner directly, including name, street address, telephone number, and email address (if available);
(iv) The following statement: “I 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”;
(v) The following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.; and
(vi) The claimant’s electronic or physical signature.
c. Delivery of Notice. The notice must be delivered to ABC Empire State designated DMCA copyright agent at the following address:
DMCA Designated Copyright Agent
ABC Empire State
12. Legal Compliance; Indemnification by Visitors.
a. Violations of Law; Breach of Agreement. 1This Website may be used only for lawful purposes in accordance with the terms of the Limited License granted in this Visitor Agreement. As a condition of Visitors use of this Website, Visitors warrant to ABC Empire State that they will not use the Website for any purpose that is unlawful or prohibited by this Visitor Agreement. Visitors shall not 1 use this Website or engage in any activities related to the Content and this Website that are contrary to applicable laws, regulations, and ordinances, including without limitation violating any state or federal law regulating email or other electronic communications. ABC Empire State, or a respective Third Party, shall be entitled to take any action that ABC Empire State or the respective Third Party deem necessary, reasonable, or appropriate, including bringing injunctive relief, with respect to any investigation of a Visitor’s breach or alleged breach of this Visitor Agreement, including without limitation reporting by ABC Empire State or a respective Third Party of any suspected violations of law to law enforcement officials, regulators, and interested third-parties, and in connection therewith, ABC Empire State and the respective Third Party shall be entitled to disclose any information deemed by ABC Empire State and the respective Third Party to be necessary, reasonable, or appropriate to such persons or entities relating to personal information and Website usage information provided to ABC Empire State or a respective Third Party by Visitors.
b. Indemnification by Visitors. In the event of a Visitor’s violation of law or breach of this Visitor Agreement, the Visitor shall indemnify, defend and hold harmless ABC Empire State, a respective Third Party, and their respective owners, members, officers, directors, governors, employees, managers, agents, representatives, successors, assigns, and third-party suppliers of information for this Website, from any and all claims, damages, liabilities, losses, and expenses, including actual attorneys’ fees, related to the Visitor’s violation of law or breach or alleged breach of this Visitor Agreement or any other use of this Website.
13. Disclaimer of Liability.
THIS WEBSITE, INCLUDING ALL CONENT CONTAINED ON THE WEBSITE, AND ALL INFORMATION PROVIDED BY THIS WEBISTE, IS PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. ABC Empire State DOES NOT PROVIDE, AND HEREBY DISCLAIMS, ANY WARRANTIES AND REPRESENTATIONS OF ANY KIND REGARDING THIS WEBSITE AND ANY CONTENT ON THIS WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODES, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, ABC Empire State WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF CONTENT, INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THIS WEBSITE, OR FOR THE INCOMPATIBILITY BETWEEN THIS WEBSITE AND FILES AND THE VISITOR’S BROWSER OR OTHER SITE ACCESSING PROGRAM, NOR WILL ABC Empire State BE LIABLE FOR ANY OTHER PROBLEMS EXPERIENCED BY THE VISITOR DUE TO CAUSES BEYOND ABC Empire State CONTROL. NO LICENSE TO THE VISITOR IS IMPLIED IN THESE DISCLAIMERS.
ABC Empire State MAKES NO WARRANTIES WHATSOVER, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT, REGARDING THE PRODUCTS OR SERVICES OF ANY THIRD PARTY WEBSITE OR MERCHANT, AND VISITORS ACCESS SUCH THIRD-PARY WEBSITES AT THEIR OWN RISK. ABC Empire State SHALL HAVE NO LIABILITY FOR ANY DAMAGES ARISING FROM ANY TRANSACTIONS BETWEEN VISITORS AND THIRD PARTY WIEBSITES OR MERCHANTS OR FOR ANY INFORMATION APPEARING ON THE WEBSITES OF SUCH THIRD PARTIES OR MERCHANTS.
14. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL E&M OR ANY AFFILIATE OF E&M BE LIABLE FOR ANY LOST PROFITS, LOST OPPORTUNITY OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF ANY USE OF OR INABILITY TO USE THIS WEBSITE , THE CONTENT, OR ANY PORTION THEREOF, OR ANY UNAVAILABILITY, INTERREPUTION, DELAY, OR FAILURE IN SERVICE OF THIS WEBISTE, THE CONTENT, OR ANY PORTION THEREOF, REGARDLESS OF WHETHER E&M HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, NOR SHALL E&M OR ANY AFFILIATE BE LIABLE FOR ANY CLAIM, DAMAGE, LOSS, INJURY, OR ANY OTHER LIABILITY ASSOCIATED WITH A VISITOR’S USE OF THIS WEBISTE, THE CONTENT, ANY ERRORS OR OMISIONS ON OR IN THIS WEBSITE, OR ANY SERVICES OR PRODUCTS OBTAINED BY VISITORS FROM OR THROUGH THIS WEBSITE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF E&M OR ANY AFFILIATE OF E&M IN CONNECTION WITH ANY CLAIM ASSOCIATED WITH THIS WEBSITE AND THE CONTENT HEREOF AND ANY PRODUCTS OBTAINED BY VISITORS FROM OR THROUGH THIS WEBSITE EXCEED $200, WHICH AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH A VISITOR HAS AGAINST E&M OR ANY AFFILIATE OF E&M.
15. Entire Agreement. The information and materials contained in and on this Website and this Visitor Agreement are subject to change without notice. This Visitor Agreement 1constitutes the entire agreement of ABC Empire State and Visitors with respect to the matters set forth herein and supersedes all other agreements and understandings, oral and written, between ABC Empire State and Visitors with respect thereto, and cannot be amended, altered, enlarged, supplemented, abridged, or modified, nor may any provision hereof be waived, except by a posting to this Visitor Agreement by ABC Empire State at any time and without prior notice.
16. Assignment; Successors and Assigns. This Visitor Agreement is assignable by ABC Empire State in its sole discretion and shall be binding upon the heirs, executors, administrators, successors-in-interest, and permitted assigns of the parties hereto.
17. Waiver. 1The failure or delay of ABC Empire State or a respective Third Party to enforce or exercise at any time any of the rights or remedies or other provisions of this Visitor Agreement shall not be construed to be a waiver thereof, nor affect the validity of any part of this Visitor Agreement or the right of ABC Empire State or a respective Third Party thereafter to enforce each and every such right or remedy or other provisions.
18. Modification, Discontinuance or Termination of Website. ABC Empire State may at any time modify, discontinue, or terminate all or any part of this Website, and ABC Empire State reserves the right to make changes to this Visitor Agreement at any time, and such changes will be effective immediately upon being posted on this Website. Each time a Visitor uses this Website, the Visitor should review the current Visitor Agreement. The Visitor’s continued use of this Website shall indicate the Visitor’s acceptance of the current Visitor Agreement. All disclaimers, limitations of liability, indemnification obligations, and other rights of ABC Empire State and respective Third Parties shall survive the modification, discontinuance, or termination of this Website and the Visitor Agreement by ABC Empire State.
19. Severability; 1Enforceability; Governing Law; and Limitation of Actions. 1Whenever possible, each provision of this Visitor Agreement will be interpreted in such manner as to be effective and valid under applicable law, and shall not be construed against any party for having drafted this Visitor Agreement. However, if any provision of this Visitor Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality, or unenforceability in such jurisdiction, without invalidating the remainder of this Visitor Agreement in such jurisdiction or any provision hereof in any other jurisdiction. 1This Visitor Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota with respect to any controversy involving ABC Empire State, provided that controversies involving a Third Party but not involving ABC Empire State shall be construed and enforced in accordance with the laws of the state where the company headquarters for such Third Party are located. For controversies related to this Visitor Agreement, with the exception of those matters to be submitted to binding arbitration in accordance with this Visitor Agreement, the parties hereby consent to the personal jurisdiction solely of the state and federal courts located in the State of Minnesota for controversies involving ABC Empire State, or for controversies not involving ABC Empire State the parties hereby consent to the personal jurisdiction solely of the state and federal courts located where the headquarters for a Third Party are located as stated above, and the parties waive any defenses or objections for lack of proper jurisdiction or venue or inconvenience of forum. No action regardless of form arising out of this Visitor Agreement and any products or services associated with this Website may be commenced more than one (1) year after the cause of action has accrued.
20. Arbitration. With the express exception of any action commenced by ABC Empire State or a respective Third Party for obtaining injunctive relief with respect to any violations of the Limited License, restrictions herein pertaining to intellectual property, or violations of law, any 1dispute, controversy, or claim arising out of or relating to this Visitor Agreement or the relationship between the parties, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). Such arbitration for matters involving ABC Empire State shall be conducted in the City of Minneapolis, Minnesota, provided that such arbitration for matters involving a Third Party but not involving ABC Empire State shall be conducted in the city where the company headquarters for such Third Party is located. The arbitration shall be conducted by one (1) arbitrator mutually agreed upon between the parties, and such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. If the parties are unable to agree upon a single arbitrator within thirty (30) days after one party has delivered written notice to the other party requesting arbitration of a stated dispute, each party shall select one arbitrator and the selected arbitrators shall select a third arbitrator in accordance with the AAA Rules. Each party shall bear one-half of the arbitration fees and costs incurred. The decision of the arbitrator(s) shall be final and accorded full faith and credit and entitled to recognition and enforcement by the federal and state courts of the United States.
21. Interpretation; Construction. 1The titles, headings or captions of this Visitor Agreement are inserted for the convenience of reference only and shall not constitute a part of, in any way alter any provision of, or affect the interpretation of, this Visitor Agreement. All references to one gender shall include all genders, and any reference to the singular shall include the plural, where appropriate, and vice versa.
22. Conflicting Terms. In the event of a conflict between the terms or provisions of this Visitor Agreement and any term or provision in or on this Website, the terms or provisions of this Visitor Agreement shall be controlling.