TRYMBL WEBSITE TERMS OF USE
Last revised April 29, 2012.
These Website Terms of Use (“Website Terms”) govern your access to and use of the trymbl.com site (the “Site”) that is provided by Try, Inc. (“Trymbl,” “we,” or “us”). PLEASE READ THESE WEBSITE TERMS CAREFULLY. BY ACCESSING AND/OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER AND YOU AGREE TO THESE WEBSITE TERMS. IF YOU ARE NOT 18 YEARS OF AGE OR OLDER OR DO NOT AGREE TO THESE WEBSITE TERMS, DO NOT ACCESS OR USE THE SITE.
Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional guidelines, terms, rules, and the Privacy Policy [insert link] are hereby incorporated by reference into these Website Terms. Unless otherwise defined in these Website Terms, capitalized terms will have the meanings set forth in the Privacy Policy.
1. User Content
1.1 License. You grant to Trymbl an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use and exploit your User Content, in any format or medium now known or developed in the future, for any purpose and in any manner. “User Content” means any and all blogs, messages, comments, photos, videos and other content and information, including all information, comments, suggestions, and other feedback relating to Trymbl’s business and current and future products and services that you provide in connection with your use of the Site. You represent and warrant that: (a) you have the right to grant the foregoing license and to post and submit the User Content; and (b) the User Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for the User Content that you post on the Site.
1.2 User Guidelines. You represent, warrant, and agree that:
(a) you will comply with all applicable laws, including privacy laws and intellectual property laws;
(b) you will not post inappropriate, inaccurate, or objectionable content to the Site;
(c) you will not bully, harass or advocate harassment of another user or person;
(d) you will not solicit passwords or Personal Data of any kind for commercial or unlawful purposes from other users, or engage in commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes;
(e) you will not post content that contains “junk mail” or “chain letters”;
(f) you will not post content that is obscene or that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(g) you will not post or upload any virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access, to the Site;
(h) you will not use the Site to do or promote anything that is unlawful, illegal, misleading, defamatory, or libelous; and
(i) you will not promote, or upload or post anything that contains, an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such or not).
If you violate the guidelines listed above, any other user guidelines posted on the Site, these Website Terms, or if we believe that any of your conduct or content is offensive or illegal, violates the rights of, harms, or threatens the safety of, third parties, or may create liability for us or third parties, Trymbl reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion, including removing such content from the Site, notifying the appropriate authorities regarding the source of such content, and barring violators from accessing the Site.
2. Ownership. Trymbl and its licensors own the Site, all content (except for your User Content) contained therein, the Trymbl products, and all intellectual property rights relating to the foregoing. You agree not to reproduce, license, distribute, trade, rent, lease, sell or exploit for any commercial purposes, any portion or use of, or access to, the Site or any content (except for your User Content) contained therein. Any unauthorized reproduction or modification, distribution, display, or performance of any portion of the Site or any content (except for your User Content) contained therein is strictly prohibited. Trymbl and its licensors reserve all rights not expressly granted under these Website Terms. There are no implied licenses in these Website Terms.
3. Interaction with Other Users. You are solely responsible for your interactions with other users. Trymbl reserves the right, but has no obligation, to monitor or take any action regarding disputes between you and other users. To the extent permitted under applicable laws, you hereby release Trymbl from any and all claims or liability related to: (a) any content posted on the Site; or (b) the conduct, whether online or offline, of any other user.
You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) 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.”
4. Third Party Websites. Our Site may contain links to Internet sites and services maintained by third parties. We do not control, operate or endorse in any respect information, products, or services on such third-party sites and are not responsible for their content. Many third-party sites and services have their own terms of use and privacy policies that differ from ours. These Website Terms and the Website Privacy Policy only apply to our Site and do not apply to any other site or information, products, or services on such sites.
5. Availability and Modification of Site. Trymbl reserves the right, from time to time, to suspend, modify, or discontinue the Site, in whole or in part, with or without notice. You agree that Trymbl will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Site, in whole or in part.
6. Warranty Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TRYMBL PROVIDES THE SITE "AS-IS" AND “AS AVAILABLE” AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. TRYMBL DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SITE. TRYMBL MAKES NO WARRANTY THAT THE SITE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU AGREE THAT TRYMBL IS NOT RESPONSIBLE FOR THE TIMELINESS, DELETION, OR MIS-DELIVERY OF CONTENT OR COMMUNICATIONS OR FAILURE TO STORE ANY PERSONALIZATION OR PREFERENCE SETTINGS. TRYMBL DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE SITE.
7. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, (A) TRYMBL WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE SITE, OR THESE WEBSITE TERMS, EVEN IF TRYMBL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) TRYMBL’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SITE AND THESE WEBSITE TERMS WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
8. User Indemnification. You agree to indemnify and hold Trymbl, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any and all losses, damages, liabilities, claims, demands, costs, or expenses, including reasonable attorneys’ fees, relating to your: (a) User Content; (b) use of the Site; (c) breach of these Website Terms; (d) breach or inaccuracy of any representation or warranty made under these Website Terms; or (e) violation of applicable laws or any of the rights of third parties.
9. Copyright Policy. You may not post, distribute, or reproduce in any way any Trymbl copyrighted material, trademarks, or other proprietary information unless you have the right to do so. If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Site of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Trymbl’s Copyright Agent for notice of claims of copyright infringement can be reached by writing to the following: Copyright Agent, 435 Milan Drive, Unit 109, San Jose CA 95134, or by sending an email with the subject line “Copyright Agent” to support@trymbl.com.
10. Disclosures. Trymbl is located at 435 Milan Drive, Unit 109, San Jose CA 95134. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11. Electronic Communications. The communications between you and Trymbl use electronic means, whether you use the Site or send us emails, or whether Trymbl posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Trymbl in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Trymbl provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
12. Governing Law; Arbitration. These Website Terms, and any claim, dispute or controversy relating to these Website Terms, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to these Website Terms must be brought in a federal or state court located in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Trymbl may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
13. General. The parties are independent contractors. If any provision of these Website Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by Trymbl will be effective only if in writing. Any waiver or failure by Trymbl to enforce any provision of these Website Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Site contains valuable trade secrets and proprietary information of Trymbl, that any actual or threatened breach of Section 2 (Ownership) of these Website Terms will constitute immediate, irreparable harm to Trymbl for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of these Website Terms are for convenience and are not to be used in interpreting these Website Terms. “Includes” and “including” are not limiting. These Website Terms and the Privacy Policy constitute the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
14. Changes. We may amend these Website Terms or the Website Privacy Policy from time to time. If we make material changes to the Website Terms or Website Privacy Policy, we will notify you by posting the change on the Site. Any changes to these Website Terms or the Website Privacy Policy will be effective immediately for new users of our Site; otherwise these changes will be effective thirty (30) calendar days following our posting of a notice on our Site. Continued use of the Site following notice of such changes will indicate your acknowledgement, and agreement to be bound by, such changes. Except as otherwise provided in this section, no amendment to these Website Terms or the Website Privacy Policy will be valid unless amended in writing and hand-signed by the parties.
15. Trademark and Copyright Notice. TRYMBL, the TRYMBL logo and other names, slogans, graphics, logos, and trade names used on the Site and Program are the trademarks of Trymbl and may not be used without Trymbl’s permission. Third-party trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners. Copyright © 2011, Try, Inc.