Directly, Inc. (referred to as "Directly", "we", "us", "our" and other similar pronouns) owns and operates the Directly website located at directly.com (the "Website"). We provide an online service, support service and various other services (collectively, the "Services"). The Service, in part, permits general users to post questions and for certain users (“Experts”) to engage with a question posted by a user.
THESE TERMS OF SERVICE (THE "AGREEMENT") SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE WEBSITE AND SERVICES. THIS AGREEMENT IS ACCEPTED BY YOUR ACCESSING AND/OR USE OF THE WEBSITE OR SERVICES. YOU MAY NOT ACCESS AND/OR USE THE WEBSITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. BY ACCESSING AND/OR USING THE WEBSITE OR SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL PROVISIONS OF THIS AGREEMENT, PLEASE DO NOT ACCESS AND/OR USE THE WEBSITE OR SERVICES.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. CERTAIN DISCLAIMERS
ALL INFORMATION CONTAINED ON THE WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY. WE (AND THE EXPERTS) DO NOT ASSUME ANY LIABILITY FOR INACCURACIES OR MISSTATEMENTS, INCLUDING WHETHER BASED ON ANSWERS (AS DEFINED BELOW) OR ON RATINGS GENERATED BY US. WE MAY PROVIDE EXPERTS AN AUTOMATICALLY GENERATED HELPFULNESS GRADE BASED ON A NUMBER OF DATA INPUTS, INCLUDING USER FEEDBACK. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES ABOUT THE HELPFULNESS GRADE, INCLUDING WHETHER OR NOT THE EXPERT WILL ACTUALLY BE HELPFUL FOR YOUR QUESTIONS (AS DEFINED BELOW). IF YOU ARE AN EXPERT AND YOU DISAGREE WITH YOUR HELPFULNESS GRADE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SERVICE.
IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, WE (AND THE EXPERTS) DISCLAIM ANY LIABILITY OR LOSS IN CONNECTION WITH THE CONTENT PROVIDED ON THE WEBSITE.
EXPERTS ARE AN INDEPENDENT COMMUNITY OF EXPERTS AND ARE NOT SPONSORED BY ANY BIG COMPANY. EXPERTS HELP ON THEIR OWN AND NOT ON BEHALF OF ANY BIG COMPANY. DIRECTLY IS NOT SPONSORED BY ANY BIG COMPANY.
DIRECTLY (AND THE EXPERTS) DOES NOT PROVIDE ANY LEGAL, FINANCIAL OR REAL ESTATE ADVICE. FOR SPECIFIC ADVICE ON LEGAL, FINANCIAL OR REAL ESTATE MATTERS, YOU SHOULD ALWAYS SEEK THE ADVICE OF A PROFESSIONAL WHO IS LICENSED AND KNOWLEDGEABLE IN THAT AREA, SUCH AS AN ATTORNEY, ACCOUNTANT OR REAL ESTATE AGENT OR BROKER. DIRECTLY IS NOT A LAW FIRM, FINANCIAL INSTITUTION, OR REAL ESTATE COMPANY AND IS NOT SPONSORED BY ANY LAW FIRM, FINANCIAL INSTITUTION, OR REAL ESTATE COMPANY.
2.1 Account Creation. In order to use certain features of the Website (e.g., to use the Services), you must register for an account ("Directly Account") and provide certain information about yourself as prompted by the Website registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Website does not violate any applicable law or regulation or the terms of this Agreement. You may delete your Directly Account at any time, for any reason, by following the instructions on the Website. We may suspend or terminate your Directly Account in accordance with Section 11. Without limiting the generality of the foregoing, to apply for to become an Expert, you will be required to provide certain information about your professional background and we may use that information to verify your professional background. We reserve the right in our sole discretion to accept or reject any application to become an Expert and to terminate your status as an Expert at any time.
2.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Directly Account login information and are fully responsible for all activities that occur under your Directly Account. Without limiting the generality of the foregoing, Experts will not allow third parties to access their Directly Account and will not disclose their Directly Account login information to third parties. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Directly Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.1 License. Subject to the terms of this Agreement, we grant you a non-transferable, non-exclusive license to reproduce and publicly display and perform content on the Website and use the Website and Services for your personal, noncommercial use.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Website or Services; (c) you shall not access the Website or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Website or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Website or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Website content must be retained on any copies or screen shots of the Website.
3.3 Modification. We reserve the right, at any time, to modify, suspend, or discontinue the Website or Services or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website or Services or any part thereof.
3.4 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Website and Services (excluding any User Content (as defined in Section 4.1 below)) are owned by us or our licensors. The provision of the Website and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. We and our suppliers reserve all rights not granted in this Agreement.
3.5 Compliance with Codes of Conduct and Training Rules. By participating as an Expert, you agree (i) during the course of your participation, to comply with all codes of conduct provided to you by Directly; and (ii) during your engagement with a question received from a particular enterprise customer, with all specific rules applicable to any enterprise customer-specific training conducted by Directly or the enterprise customer.
4. USER CONTENT
4.1 User Content. "User Content" of a Website user means any and all information and content that such user submits to, or uses with, the Website or Services, other than information and content submitted through UserVoice. You are solely responsible for your User Content, including any Question or Answer (each as defined below) you provide. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby affirm, represent, and warrant that (i) you own, or have the necessary licenses, rights, and/or consents to use your User Content with the Website as described herein and (ii) your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by us or any 3rd party organization or association. Because you alone (and not us) are responsible for your User Content, including and Question or Answer you submit, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. We are not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. If you receive an Answer to your Question, you are solely responsible for creating backup copies of such Answer if you desire.
4.2 License. By using your User Content with the Website, you automatically grant, and you represent and warrant that you have the right to grant us an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Website and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Feedback. We will treat any feedback or suggestions you provide to us as non-confidential and non-proprietary. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
4.4 Questions and Answers. "Question" means any content any user posts to or otherwise makes available on the Services. "Answer" means any content any Expert makes available using the Services in response to a Question. Any Question or Answer shall be the sole and exclusive property of Directly. You hereby irrevocably transfer and assign to Directly all of your right, title and interest in and to any Question or Answer, whether created now or in the future, including all intellectual property rights therein. Directly, or a Directly enterprise customer if Directly has assigned to such enterprise customer Directly’s right, title and interest in and to an Answer you submit, hereby grants to you an unlimited, perpetual, irrevocable license to exercise all copyright rights in the Answer you submit. To the fullest extent permitted by applicable law, you hereby irrevocably waive and agree never to assert, any and all moral rights that you may have in or with respect to any Question or Answer, during and after the term of this Agreement.
5. ACCEPTABLE USE POLICY
The following sets forth our "Acceptable Use Policy":
5.1 You understand that all User Content, including any Question or Answer you submit, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such User Content originated. This means that you, and not we, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available via the Website or Services, including any Question or Answer you submit. With respect to any User Content that you submit, you agree to not use the Website or Services to:
- upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Website or Services;
- upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- create multiple Directly Accounts, or “game” the system in order to falsely earn points, rewards or reputation, including without limitation by getting friends to submit Questions, or using crowd labor platforms to boost results
5.2 Without limiting the foregoing and for the avoidance of doubt, Experts are specifically prohibited from uploading, posting, emailing, transmitting or otherwise making available any information concerning any entity or individual that is confidential, proprietary or trade secret in nature, including all Confidential Information (as that term is defined in Section 8 of this Agreement). Experts are required to provide only truthful and accurate information; to comply with any legal and contractual obligations that they may owe to their employer or other third parties; and to perform their work as an Expert on their own time, using their own resources and equipment (as opposed to work time and/or the resources or equipment of their employer). Experts shall provide for and maintain their own equipment and Internet connectivity in connection with their work as an Expert.
5.3 We do not control the User Content posted via the Website or Service and, as such, do not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the Website or Services, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of or reliance on any User Content posted, emailed, transmitted or otherwise made available via the Website or Services. You acknowledge that we may or may not pre-screen User Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Website or Services. Without limiting the foregoing, we and our designees shall have the right to remove any User Content that violates the terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content.
5.4 Without limiting the foregoing and for the avoidance of doubt, any opinions, advice, or other information or content expressed or made available by Experts, including Answers, are those of the respective Expert. In many instances, the content available through this Website represents the opinions and judgments of the respective Expert. Directly does not endorse, and is not responsible for the accuracy or reliability of any opinion, advice or statement made on the site by any Expert, including Answers.
5.5 You agree that you will not use the Website or Services to:
- interfere with or disrupt our servers or networks, or disobey any requirements, procedures, policies or regulations of networks, including using any device, software or routine to bypass our robot exclusion headers;
- intentionally or unintentionally violate any applicable local, state, national or international law and any regulations having the force of law;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- "stalk" or otherwise harass another;
- attempt to gain unauthorized access to the Website or Services, other computer systems or networks connected to or used together with the Website, through password mining or other means;
- interfere with another user's use and enjoyment of the Website;
take any action that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; or
- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through f above.
6.1 Experts are not employees of Directly or Directly’s enterprise customers. The Experts’ relationships with Directly and with Directly’s enterprise customers are those of an independent contractor, and nothing about their participation with Directly or Directly’s enterprise customers is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. The Experts are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to receipt of fees in connection with serving as an Expert. Fees paid to Experts shall not be subject to withholding for any tax purpose. Directly or Directly’s enterprise customers, if applicable, will report payments to Experts to the Internal Revenue Service as required by law. Nothing in this Agreement shall be deemed to restrict Experts from providing the same or similar services to third parties, regardless of whether any such third party directly or indirectly competes with Directly, except that Experts shall not use any Directly Confidential Information in the provision of such services. "Directly Confidential Information" means all non-public confidential information pertaining to such Directly’s business that is either designated and/or marked as confidential when disclosed to Expert or which Expert knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Directly even if not designated or marked as such.
7. THIRD PARTY SITES & ADS; OTHER USERS
7.1 Third Party Sites & Ads. The Website might contain links to third party websites and advertisements for third parties (collectively, "Third Party Sites & Ads"). Such Third Party Sites & Ads are not under our control and we are not responsible for any Third Party Sites & Ads. We provide these Third Party Sites & Ads only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site, the applicable service provider's terms and policies, including privacy and data gathering practices govern. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 Other Users. Each Website user is solely responsible for any and all its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, including Questions and Answers, and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, including Questions and Answers, and we assume no responsibility for any User Content, including Questions and Answers. Your interactions with other Website users are solely between you and such user. You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Website user, we are under no obligation to become involved.
7.3 Release. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with, User Content from, or conduct of other Website users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
8. CONFIDENTIAL INFORMATION
By participating as an Expert, you acknowledge and agree that Questions may contain private, proprietary or confidential information of (a) the applicable user or (b) the applicable enterprise customer, whether or not marked as proprietary or confidential (collectively, the “Confidential Information” which such Confidential Information is a part of the Services). Experts shall keep all Confidential Information in strictest confidence and shall not disclose any Confidential Information to any other entity or person or use Confidential Information except to participate as an Expert hereunder. “Confidential Information” does not include information that demonstrably (a) is or becomes generally available to the public other than as a result of disclosure by you; (b) was possessed by you prior to being furnished by the Website; or (c) becomes available to the receiving party from a source other than the Website or the Services. Further, it shall not be a violation for Experts to disclose Confidential Information in response to a subpoena or other legal process served upon you or where applicable law or regulation requires the disclosure of such information, provided that, if not prohibited under applicable law, you give reasonable prior written notice to Directly sufficient to permit Directly to inform the applicable enterprise customer so that the enterprise customer can seek a protective order if it so chooses and you disclose only that information that is legally required to be disclosed. Experts acknowledge and agree that Directly and the applicable user or enterprise customer, as applicable, would each be irreparably harmed if any Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than that permitted hereunder, and further agree that each of Directly and the applicable enterprise customer shall have the right to injunctive relief upon any violation or threatened violation of the terms of this Section, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security. Upon the termination, cancellation or expiration of your Directly Account for any reason, Experts shall destroy all Confidential Information, together with any copies that may be authorized herein. Nothing herein is intended to or shall grant to you any license or other right of any nature to the use of any Confidential Information except as permitted in this Section.
THE WEBSITE, SERVICES, AND WEBSITE CONTENT ARE PROVIDED "AS-IS" AND AS AVAILABLE AND WE (AND OUR SUPPLIERS AND THE EXPERTS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS AND THE EXPERTS) MAKE NO WARRANTY THAT THE WEBSITE, SERVICES, OR WEBSITE CONTENT: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. WE MAKE NO WARRANTY REGARDING THE THIRD PARTY SITES & ADS. PLEASE ALSO REVIEW THE SPECIFIC DISCLAIMERS IN SECTION 1.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND OUR SUPPLIERS AND THE EXPERTS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, SERVICES, WEBSITE CONTENT, OR THIRD PARTY SITES & ADS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE WEBSITE, SERVICES, WEBSITE CONTENT AND THIRD PARTY SITES & ADS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS') LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WEBSITE, SERVICES, OR WEBSITE CONTENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU'VE PAID US IN THE PRIOR 12 MONTHS (IF ANY). AN EXPERT'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WEBSITE, SERVICES, OR WEBSITE CONTENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU'VE PAID THE EXPERT IN THE PRIOR 12 MONTHS (IF ANY). WE WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIRD PARTY SITES & ADS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11.1 By You. You agree to indemnify and hold us, our parents, subsidiaries, affiliates, any related companies, our suppliers, licensors and partners, our enterprise customers, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Website or Services, (ii) your User Content, including Questions and Answers, or (iii) your violation of this Agreement. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11.2 By Us. We will (1) defend, or at our option settle, any suit filed by a third party against you (a “Suit”) to the extent such Suit claims that your use of the Services as permitted in this Agreement constitutes infringement or misappropriation by you of a third party’s intellectual property rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agreed to by us in a monetary settlement of such Suit. If any portion of the Services becomes, or in our opinion is likely to become, the subject of a claim of infringement, we may, at our option: (a) procure for you the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by you to us for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Services. Notwithstanding the foregoing, we shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (x) any use of the Services not in accordance with this Agreement; (y) any use of the Services in combination with other products, equipment, software or data not supplied by us; or (z) any modification of the Services by any person other than us or our authorized agents. This subsection states your sole and exclusive remedy and the entire liability of Directly, or any of our officers, directors, employees, shareholders, contractors or representatives, for infringement claims and actions.
12. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Website. We may (a) suspend or limit your rights to use the Website and/or Services (including your Directly Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including (i) for any use of the Website in violation of this Agreement; (ii) if as an Expert you do not meet, or cease to meet, the guidelines set forth in an agreement with a Directly enterprise customer; or (iii) or if we believe you are younger than 18. Upon termination of this Agreement, your Directly Account and right to access and use the Website and Services will terminate immediately. You understand that any termination of your Directly Account may involve deletion of your User Content associated therewith from our live databases. We will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Directly Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1, 2.2-2.4, 3.2, 3.4, 4-14.
13. COPYRIGHT POLICY
We respect the intellectual property of others and ask that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our designated Copyright Agent is: Antony Brydon, Directly, Inc., 333 Bryant Street, LL120, San Francisco, CA, 94107.
14.1 Changes to Terms of Service. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Website so it is visible when you visit and/or log-on to the Website for the first time after the change is posted. Your continued use of the Website and Services after the changes have been posted shall constitute your acceptance of the changes. If you do not agree to the updated Agreement, you must cease your use of the Website and Services.
Any material changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Website. These changes will be effective immediately for new users of our Website. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.
14.2 DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and Directly or Directly’s employees, agents, enterprise customers, successors, or assigns, shall exclusively be settled through binding and confidential arbitration, except that you or Directly may take claims to small claims court if the dispute qualifies for hearing by such a court. THERE’S NO JUDGE OR JURY IN ARBITRATION AND ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND REVIEW BY A COURT IS LIMITED.
Arbitration shall be subject to the Federal Arbitration Act and shall be conducted before JAMS, or its successor. As modified by this agreement, the conduct of the arbitration shall be subject to JAMS’ Comprehensive Arbitration Rules and Procedures. You and Directly must abide by these rules: (a) ANY CLAIMS BROUGHT BY YOU OR DIRECTLY AGAINST THE OTHER SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY SUCH CLAIM TO BE DECIDED, IN ARBITRATION OR OTHERWISE, ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) Directly will pay the arbitration costs as required by JAMS’ rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Directly will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) the arbitrator shall honor claims of privilege and privacy recognized at law; (e) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award (f) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (g) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at-issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.
With the exception of subparts (a) and (b) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, either subpart (a) or (b) in the paragraph above is found invalid, unenforceable or illegal, then neither you nor Directly shall be entitled to arbitrate the dispute.
Notwithstanding the foregoing, either party may seek injunctive or other equitable relief to protect its intellectual property rights. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California and you and Directly consent to the exclusive jurisdiction of the courts in San Francisco County, California.
The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
14.3 Electronic communications. The communications between you and us use electronic means, whether you visit the Website or send e-mails, or whether we post notices on the Website or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights.
14.5 Copyright/Trademark Information. Copyright (c) 2010-2013. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Website are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
14.6 System Outages and Changes to Services. You acknowledge and agree there will be occasions when the Website and/or Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond our control, and that we will have no liability for your inability to access and/or use the Website and/or Services, or any portion thereof, during any of the foregoing events. We reserve the right to change, alter or vary the Website, Services and/or User Content offered on or through the Website and Services at any time without notice.
14.7 Third Party Beneficiary. Directly and you acknowledge and agree that each of Directly’s enterprise customers to which you provide a Question or Answer is a third party beneficiary of this Agreement, and that, upon you accepting the terms and conditions of this Agreement, such Directly enterprise customers will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.