TERMS OF — USE AGREEMENT
MODIFIED NOVEMBER 13, 2014
YOUR ACCESS TO AND — USE OF THE WEBSITE CONSTITUTES CONCLUSIVE EVIDENCE (i) THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THE AGREEMENT AND (ii) OF YOUR CONSENT TO, AGREEMENT WITH AND ACCEPTANCE OF ALL OF YOUR RIGHTS, DUTIES, OBLIGATIONS, WAIVERS AND LIABILITIES PROVIDED FOR THEREBY, AND OF ALL FUTURE MODIFICATIONS, CHANGES OR ALTERATIONS THEREOF.
YOU ACKNOWLEDGE THAT WE MAY, FROM TIME TO TIME AND AT ANY TIME, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE TO YOU, MODIFY, RESTRICT, CHANGE, OR OTHERWISE ALTER THE AGREEMENT OR THE WEBSITE, OR ANY COMPONENT OR FEATURE THEREOF, IN WHOLE OR IN PART, IMPOSE LIMITS ON ANY FEATURE OF THE WEBSITE, OR RESTRICT YOUR ACCESS TO ANY PART OR ALL OF THE WEBSITE AND THAT ALL SUCH MODIFICATIONS SHALL BE BINDING UPON YOU FROM THE DATE OF THEIR POSTING ON THE WEBSITE. THE INFORMATION CONTAINED IN THE WEBSITE, WHETHER HISTORICAL OR FORWARD-LOOKING, SPEAKS ONLY AS OF THE DATE OF POSTING AND WE DO NOT UNDERTAKE ANY OBLIGATION TO UPDATE OR TO REMOVE ANY SUCH INFORMATION FROM THE WEBSITE SHOULD IT BECOME INACCURATE OR INCOMPLETE.
THE MOST CURRENT VERSION OF THE AGREEMENT, WHICH SUPERSEDES ALL PREVIOUS VERSIONS THEREOF, CAN BE REVIEWED BY CLICKING ON THE “TERMS OF — USE” HYPERLINK LOCATED AT THE BOTTOM OF EACH PAGE OF THE WEBSITE.
As used in the Agreement, the following terms have the following meanings:
- “DGS ” refers to Divorced Girl Smiling, LLC, which owns and maintains the Website.
- “External Links ” refers to links to other independent websites which we may provide for your convenience on the Website.
- “Our Notice Address ” shall be Divorced Girl Smiling, LLC, c/o J.D. Purdy, Baugh, Dalton, Carlson & Ryan,135 South LaSalle Street, Suite 2100, Chicago, Illinois 60603.
- “Use ” refers to use by You of the Website for any purpose whatsoever.
- “User Generated Content ” refers to materials submitted for posting on the Website, including text, images, photographs and video.
- “We ” and “Us ” refers to DGS or any successor, subsidiary, division or assignee thereof.
- “You ” or “Your ” refers to the user of the Website.
- “Website ” refers to divorcedgirlsmiling.com.
You must be 18 years of age or older to visit or use the Website. By using the Website and/or otherwise accepting the Agreement, You represent and warrant to Us that You: (i) are 18 years of age or older, and that You have the right, authority and legal capacity to agree to and abide by the Agreement and (ii) will use the Website in a manner consistent with the Agreement and any and all applicable laws and regulations.
Code of Conduct
You agree that your use of the Website shall be governed by the following Code of Conduct, by which You agree to be bound and by which You agree to abide:
- You are solely responsible for any content that you post on the Website or transmit to Us. Postings by you will (i) contain correct, accurate, current and complete information and (ii) comply with all applicable laws, including trademark, trade secret and copyright laws, and by the act of such posting, you represent and warrant such compliance and that You have full rights, including all required consents, in the posted materials. You will remove any information previously posted by You that becomes inaccurate or misleading, and notify Us immediately of such removal.
- You will not solicit any person for any purpose, and will not use the Website to distribute, promote or otherwise publish any material containing any solicitation for funds, advertising or solicitation for goods or services.
- You will not engage in any form of harassment or offensive behavior, including but not limited to the posting of communications, pictures or recordings which contain libelous, slanderous, abusive, threatening or defamatory statements, or racist, pornographic, obscene, or otherwise offensive language, or links to such materials.
- You will not infringe the privacy rights, property rights, including intellectual property rights, or any other rights, or post confidential information of any person.
- You will not post messages, pictures or recordings or use the Website in any way that (i) violate, plagiarize or infringe upon the rights of any third party, including but not limited to any intellectual property, including copyright or trade-mark law, privacy or other personal or proprietary rights, or (ii) are fraudulent or otherwise unlawful or violate any law.
- You may use the Website only for Your personal use, and not in connection with any commercial endeavor. Illegal and/or unauthorized use of the Website, including the collection of any personal information by any means for the purpose of sending unsolicited email and unauthorized co-branding, framing of or hyper-linking to the Website may be investigated and appropriate action will be taken, including, without limitation initiation of civil, criminal and injunctive redress.
- You shall not distribute or upload any virus, or malicious software of any type, or do anything else that might cause harm to Us , the Website, our Systems, or any those of other user of the Website in any way.
- You shall not post or transmit in any manner any contact information including but not limited to email addresses, “instant messenger” nicknames or contact information, telephone numbers, postal addresses, URLs, and full names through publicly posted information on the Website.
- You shall not cause or allow the Website to be accessed through any automated or robotic means, including but not limited to the rapid access of the site as in a denial-of-service attack. Such restriction shall not apply to legitimate search engine activity that does not place an unreasonable burden on the Website.
- You shall not use any third-party application such as a mobile smart phone application, social media or other Web page widget, or any other such mobile, social media, Web, or desktop application to access the Website, except where such application is either provided or endorsed by us. Such restriction shall not apply to a browser application which merely displays the pages of the Website in their entirety without modification or reformulation of content.
- You may not use the Website in any manner which could disable, overburden, damage or impair the Website or interfere with any other party’s use and enjoyment of the Website.
- You may not obtain or attempt to obtain any materials, content or information through any means not intentionally made available or provided by the Website. You agree to cooperate with us in causing any unauthorized co-branding, framing or hyper-linking immediately to cease.
For each violation of this Code of Conduct, You agree to pay Us upon receipt of Our written demand therefor all expenses involved with investigation and prosecution of such violation, in addition to any actual damages which We may incur, including, without limitation, court costs and reasonable attorneys’ fees.
Content Generated By Us
We are the owner of all copyright rights and other property rights to the Website and its content. Further, we reserve all rights regarding the content posted to the Website. The content on the Website may not be used or disseminated without Our prior written consent. The Website may contain text, images, audiovisual productions, opinions, statements, facts, articles, or other information created by Us or by third parties for Us. Such content is for user reference only and should not be relied upon by You for any purpose. We are not responsible for the content’s accuracy and reliability.
You understand that by using any of the External Links, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the External Links at Your sole risk and that We shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable, for any other reason. It shall be Your sole and exclusive obligation to prevent children and other persons from viewing or accessing any inappropriate content that may be included in or available through any External Links.
You acknowledge and agree that We are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such materials at External Links. We do not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any External Links or for any other materials, products, or services of third parties.
You understand and agree that Your use of External Links may result in harmful or unwanted content or malicious software infecting or interacting with your computer or mobile device. You accept all risk in connection with such External Links, and you agree that We shall have no responsibility to You in the event Your computer or mobile device is affected in any way by your use of External Links.
User Generated Content
You may post User Generated Content to the Website, provided that You abide by the Code of Conduct.
You are solely responsible for the content of User Generated Content posted by you on the Website. You acknowledge and agree that neither We, nor any third party that provides content to the Website will assume or have any liability for any action or inaction by Us or such third party with respect to any User Generated Content.
We caution You against giving out any personally identifiable information relating to You or Your children. You grant to Us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and fully-paid, transferable right and license (including the right to sublicense) to exercise all copyright, publicity, moral and other rights with respect to any User Generated Content that You post on the Website in any media format and through any media channel, including the rights to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display all content, remarks, suggestions, ideas, graphics, or other information contained therein, and the right to incorporate any User Generated Content in other works in any form, media, or technology now known or developed in the future.
We expressly disclaim any liability or responsibility for User Generated Content posted to the Website, and make no representation as to the usefulness, safety, or intellectual property rights of or relating to such User Generated Content. Such Content does not necessarily represent Our opinion or position.
We do not promise or guarantee that any User Generated Content posted on Website is correct or accurate, and do not necessarily agree with or endorse such content.
It is Your sole responsibility and obligation to comply with all provisions of the Agreement, including the Coat of Conduct.
We specifically reserve the rights to:
- Monitor the use of the Website to determine compliance with the Agreement, including the Code of Conduct.
- Terminate Your access to the Website or any part thereof at any time without notice and for any reason whatsoever.
- Disclose any information necessary to satisfy any applicable law, regulation, legal process or governmental request.
- Edit, refuse to post or remove any information or materials in whole or part at Our sole discretion.
We shall not be liable to You in any manner for the exercise of the foregoing rights.
Waiver and Indemnity
We shall have no liability for any inaccurate, offensive, indecent, or objectionableor defamatory information posted on the Website, or for the disclosure thereby of personal information belonging to anyone.
You hereby waive any rights and remedies, legal or equitable, which You may have against Us with respect to such information. In consideration of Our agreement to allow You to use the Website, You, at Your sole cost and expense, hereby agree to indemnify, defend and hold harmless Us and Our members, owners, agents, information providers, affiliates, licensors and licensees (collectively, the “Indemnified Party” or “Indemnified Parties” as the context dictates) from and against any and all liability and costs, including, without limitation, court costs and reasonable attorneys’ fees, incurred by any Indemnified Party in connection with any claim arising out of, or alleged to arise out of, any breach by You of the Agreement, the Code of Conduct, the representations, warranties and covenants set forth in the Agreement, or Your use or misuse of the Website. You agree to cooperate as fully as reasonably required in the defense of any such claim at Your own expense. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
YOU UNDERSTAND AND AGREE THAT YOU — USE THE WEBSITE AT YOUR OWN RISK. INFORMATION IS PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION UNDER LAW.
WE DO NOT AND CANNOT AND DO NOT WARRANT OR GUARANTEE THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET WILL BE FREE OF VIR– USES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY INFECT OR CONTAMINATE YOUR COMPUTER. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE PROTECTION OF YOUR COMPUTER AND THE ACCURACY OF DATA INPUT AND OUTPUT AND FOR MAINTAINING A MEANS EXTERNAL TO THE WEBSITE FOR ANY RECONSTRUCTION OF LOST DATA. WE DO NOT ASSUME ANY RESPONSIBILITY OR RISK FOR YOUR — USE OF THE INTERNET.
WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR TIMELINESS OF, OR OTHERWISE ENDORSE ANY INFORMATION CONTAINED ON THE WEBSITE. DUE TO THE NUMBER OF SOURCES FROM WHICH WEBSITE CONTENT DISTRIBUTED BY US IS OBTAINED, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES IN SUCH CONTENT. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED BYUS OR ANY — USER OF THE WEBSITE OR ANY SERVICE OR ANY OTHER PERSON OR ENTITY. YOU ACKNOWLEDGE THAT ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT OR INFORMATION SHALL SOLELY BE AT YOUR SOLE RISK.
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL WE, OUR MEMBERS, EMPLOYEES, AGENTS AND THIRD PARTY CONTENT PROVIDERS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS WHATSOEVER CA– USED BYOR ARISING OUT OF OR RELATING TO: (i) YOUR CONDUCT OR THAT OF ANYONE ELSE IN CONNECTION WITH THE — USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER — USERS OR PERSONS WHOM YOU MAY MEET THROUGH THE WEBSITE. OR (ii) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO AND/OR ALTERATION OF THE WEBSITE.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR INJURY ARISING OUT OF THE — USE OF, OR INABILITY TO — USE, THE WEBSITE OR ANY SERVICE OR OUT OF THE BREACH OF ANY WARRANTY, OR CA– USED BY ANY OF THE MATTERS SET FORTH ABOVE, OR ANY OTHER MANNER, NO MATTER WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER CA– USE OF ACTION, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EACH PARTY AGREES THAT SUCH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, NO CLAIM MAY BE CONSOLIDATED OR JOINED WITH MORE THAN ONE PERSON’S OR PARTY’S CLAIMS. UNLESS BOTH PARTIES AGREE OTHERWISE, NEITHER PARTY MAY JOIN ANY CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, EITHER PARTY MAY ONLY SEEK AND/OR ACCEPT AN AWARD OF RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND/OR DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). IN ANY EVENT, OUR LIABILITY PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED AND 00/100 DOLLARS ($100.00), OR THE AMOUNT, IF ANY, PAID TO US FOR GOODS OR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT UPON WHICH SUCH LIABILITY IS PREDICATED, WHICHEVER SHALL BE GREATER.
We respect your personal privacy and the sensitivity of your personal and corporate information. When You visit the Website, we may collect personally identifiable information that You choose voluntarily to disclose. We also may automatically collect certain website use information as You browse the Website. We may share your personal information with other companies and individuals that perform supporting functions in connection with orders for Our products (e.g., credit card processing), and with maintaining the Website. Additionally, we may from time to time share such information with third parties who may from time to time send you commercial emails. If you do not wish to receive commercial emails from third parties you may opt-out by sending us an email at firstname.lastname@example.org. Except as provided herein, we will not share your personal information or any website use information with any party unless required by law or pursuant to duly issued subpoena.
Resolution of Disputes
Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate shall be determined by arbitration in Chicago, Illinois before one arbitrator (the “Arbitrator “). The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and procedures and the Expedited Procedures contained in those Rules, including Rules 16.1 and 16.2, as the same exist on the original effective date of this Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude any party from seeking provisional remedies in aid of arbitration in a court of appropriate jurisdiction. The Arbitrator shall be retired Judge of a court sitting in Cook or DuPage Counties, Illinois or an attorney with ten years of active practice in the area of commercial law.
In any arbitration arising out of or related to the Agreement:,
- the Arbitrators may not award any incidental, indirect or consequential damages, including damage from lost profits and are not empowered to award punitive or exemplary damages, except as permitted by statute, and the parties hereby waive any right to recover any such damages.
- The Arbitrator shall award to the prevailing party, if any, the costs and reasonable attorneys’ fees incurred by such party in connection with the arbitration; provided, however, that for the purposes of this Paragraph, an award of merely nominal damages to a party in regard to any issue raised in such arbitration shall not constitute such party as the “prevailing party” in respect of such issue.
You understand and acknowledge that that:
1. Arbitration is final and binding on the parties to the Agreement.
2. By accepting the Agreement, you waive your right to seek remedies in court, INCLUDING YOUR RIGHT TO A JURY TRIAL.
3. Pre-arbitration discovery is generally more limited than and different from court proceedings.
4. The award of the arbitrators is not required to include actuals bindings of fact or legal reasoning, and Your right to appeal seek modification of such ruling is strictly limited.
The Agreement represents the entire agreement between You and Us regarding the use of the Website and supersedes any other agreement or understanding on the subject matter. You acknowledge that neither We nor any of Our members, agents, employees or representatives have made any statement, representation or promise with regard to the subject matter of the Agreement not specifically set forth in the Agreement. Specifically, You waive any and all right to rely on any statement, representation or promise not contained in this Agreement. The Agreement, Your rights and obligations, and all actions contemplated by the Agreement shall be governed and interpreted by the laws of the State of Illinois, and any action to enforce any provision of the Agreement or any arbitration award rendered pursuant to the Agreement shall be brought in a court of competent jurisdiction located in Cook County Illinois.
A printed version of the Agreement and of any notice given in electronic form shall be admissible in arbitration, judicial or administrative proceedings based upon or relating to the Agreement to the extent and subject to the same conditions as of other business documents and records originally generated and maintained in printed form shall be generally admissible in such proceeding.
Additionally, except where prohibited by law, as a condition of using the Website, You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising from or related to the use of the Website must be filed within one (1) year after such claim or cause of action arose or be forever barred. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and be enforceable. You may not assign, transfer or sublicense the Agreement without Our prior written consent. We may assign the Agreement in whole or in part at any time in our sole discretion. No agency, partnership, joint venture, or employment is created as a result of the Agreement. Headings are for convenience only and have no legal or contractual effect. All notices under the Agreement shall be in writing and shall be deemed to have been duly given when receipt is electronically confirmed, if transmitted by facsimile or email or upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Us may be sent by email to email@example.com or by certified or registered mail to Our Notice Address. Notices by Us to You may be sent to the email or mailing address submitted by You in connection with Your registration for the Website. Either party may change such party’s notice address to the other party at the notice address provided for herein.
Digital Millennium Copyright Act Notice and Takedown Procedure
If you believe that Your copyright or other rights have been infringed, please provide Our Designated Agent (identified below) written notice containing the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other interest.
- A description of the copyrighted work or other work that You claim has been infringed.
- A description of where the material that You claim is infringing is located on the Website.
- 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.
- 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 are authorized to act on the copyright owner’s behalf.
The address of Our Designated Agent for notice of claims of copyright is as follows:
Divorced Girl Smiling, LLC
Baugh, Dalton, Carlson & Ryan
135 South LaSalle Street
Chicago, Illinois 60603
If the disputed materials were posted by a third party identifiable through reasonable efforts, we will provide reasonable notice to the third party of the charge. If the third party responds with a valid counter-notification, We will provide you with a copy so that You may take any other steps You may consider appropriate.