Z. Terms and conditions
IncitED Terms of Use
Effective Date: February 23, 2013.
Welcome to the IncitED website (the “Site”) and the service operate by IncitED through the Site (the “Service,” as further defined below).
The Service is a platform that permits users who have registered with IncitED (“Users”) to: (i) create User profiles (“User Profiles”) from which to collaborate with other Users in order to “crowdsouce” the ideas and skills of other educators from around the world; and (ii) to list educational projects (“Projects”) in order to seek funding for those Projects from other Users. For purposes of these terms, Users who post or list projects through the Service are referred to as “Creators,” while Users who pledge funds towards a particular Project are referred to as “Funders.”
Please carefully review the following Terms of Use (“Terms”) prior to browsing the Site or using the Service. THESE TERMS ARE THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND THE SERVICE. YOUR USE OF THE SITE AND THE SERVICE IN ANY MANNER CONSTITUTES YOUR AGREEMENT TO THESE TERMS. PLEASE DO NOT USE THE SITE OR THE SERVICE OR OTHERWISE PROVIDE ANY INFORMATION TO US IF YOU DO NOT AGREE TO THESE TERMS.
1. Who We Are. The Site is owned by IncitED, Inc. an Oregon corporation (“IncitED,” “we,” “us,” “our”). Our mailing address is 5606 NE 16th Street, Portland, OR 97211; our telephone number (customer service) is (971) 266-0291.
2. Functionality and Availability; Termination. You may use the Site and the Service, subject to and in accordance with these Terms, when and as available. Although we generally intend for the Site and the Service to be available on an uninterrupted basis, it will not always be available (e.g., during maintenance, changes, outages and for other reasons). We further reserve the right to change or eliminate and restrict or block access to all or any part of the Site or the Service from time to time without notice to you, in our discretion, without liability to you or to any third party.
3. Privacy Policy. Our Privacy Policy describes our privacy practices. You should review the Privacy Policy because it describes the information that we collect, how we collect it and what we do with that information.
4. Venue Only. The Site and the Service act as an online venue and platform only. IncitED has no control over any aspects of any Project listings or User Profiles, the truth or accuracy of such Project listings or User Profiles, the identity of the Creator or any other User, or the ability of the Creator to complete or perform a particular Project. Project listings, User Profiles, or any other material or content posted on the Site or through the Service in connection with a Project does not imply and should not be considered an endorsement by IncitED.
As a venue, IncitED is similarly not a party to any transaction entered into by Creators and Funders. In particular, When Funders pledge funds to a Creator in connection with a Project, IncitED is not involved in the actual transaction between the Creator and the Funder. Accordingly, each Creator and each Funder is solely responsible for their respective transactions or other activities through the Service, including without limitation, the payment amount and terms and payment method.
5. Registering as a User. You may browse certain pages of the Site without registering with IncitED, but for complete access, including use of the Service, you must be registered with IncitED. Please click here to register.
When you register, you will be asked to provide certain registration information and to choose a User name and/or password. You agree to provide accurate, complete and updated registration information and you further agree not to select a User name that is the name of any another person with the intent to impersonate that person, that infringes or misappropriates a third party’s intellectual property rights or other proprietary rights, or that is otherwise vulgar or offensive. IncitED may reject any user name for any reason in its sole discretion.
You are solely responsible for maintaining the confidentiality and security of your User name and password and you further agree not to use the account, User name, or password of any other User or permit third parties to use your account, User name or password. Failure to comply with the requirements set forth in this Section may result in immediate termination of your user privileges. You agree to promptly notify IncitED if you suspect any unauthorized use of your account, User name or password. However, you are solely responsible for any and all uses of your account, and any and all transactions resulting therefrom.
6. Projects and User Profiles. IncitED is an online platform where Users can post User Profiles in order to collaborate with other Users and where Creators can post Projects and Funders can fund those Projects. These Terms shall apply to every User who posts a User Profile or who acts as a Creator or Funder, including without limitation, the following terms:
Contractual Nature of Projects
When a Creator posts a Project through the Service, the Creator is providing Users the opportunity to fund the Project. In other words, when a Creator posts a Project, the Creator is offering Users the opportunity to enter into a contract with the Creator with respect to contributing funds to the listed Project. When a User agrees to contribute money towards a Project, the User becomes a “Funder” and accepts that contract offer, thereby creating a legally binding contract between the Creator and the Funder. It is important to remember, however, that because IncitED acts as a venue only, IncitED is not a party to the contract between the Funder and the Creator; instead, the sole parties to the contract are the Creator and the Funder.
Verifying and Investigation of Projects and Users
Projects and User Profiles are posted by Creators and/or Users without participation, endorsement or investigation by IncitED. IncitED does not evaluate or investigate Projects or User Profiles or any information set forth therein, including without limitation, the legality, merits, feasibility or desired outcome of any such Projects, or the contents of such User Profiles, nor does IncitED perform any due diligence or research on any Creator or User, including without limitation, the identity of the Creator or User or the background or experience of such Creator or User. Accordingly, all Projects and User Profiles listed or posted on the Service are intended only to be indicative or illustrative. No information in a Project listing or User Profile is intended to be a guarantee or warranty on the part of IncitED and you agree not to rely on such information. We assume no liability for the use of or reliance on such information – it is your responsibility to undertake the necessary research and due diligence and/or have the proper knowledge and experience to evaluate a particular Project and/or the background or experience of a Creator or User.
Funding Projects
Funders must provide accurate payment information at the time they agree to fund a Project (to the extent the Funder has not been asked to provide payment information as part of his or her registration). Funders will be charged only if the total funding amount sought by the Creator to fund the Project is achieved. As such, Funders will only be charged at the end of the Project funding deadline and will only be charged in the amount pledged by that Funder to the Project. However, each Funder authorizes IncitED and/or payment companies working with IncitED, at the time the pledge is made and until such time as the pledged funds are collected, to reserve on the Funder’s credit card or other payment method a charge in an amount equal to the pledged amount. Funders agree to have adequate funds and/or credit available to them at the Project funding deadline.
Funders are entitled to cancel, alter or modify (including reduce or increase) their pledges at any time, except to the extent that: (i) at the time of the cancellation, alteration or modification, there is less than twenty-four (24) hours until the Project funding deadline; and (ii) in the event the Funder is attempting to cancel or decrease his or her pledge, such cancellation or decrease would cause the total amount pledged to the Project to fall below the Creator’s funding goal. Each Funder agrees not reduce its pledge to a Project in violation of this Section.
It is also important to note that IncitED does not offer refunds and a Creator is not required to grant a Funder’s request for a refund unless the Creator has offered a Reward (defined below) to Funders in connection with a Project and the Creator is unable or unwilling to fulfill the Reward. Remember, any dispute between a Creator and a Funder regarding a refund or a Reward is solely between the Creator and Funder.
For all Projects, each Funder authorizes IncitED to provide the Creator the Funder’s User name and pledge amount. In the event the Creator reaching his or her funding goal in connection with a Project, each Funder further authorizes IncitEd to provide the Creator the Funder’s name and email address.
Creating Projects
As noted above, Creators seeking funding for a Project may post the Project through the Service. Each Project posted through the Service shall consist of: (i) the identity of the Creator posting the Project; (ii) a description of the Project; (iii) the Reward(s) offered to Funders, if any, and the estimated delivery date for such Reward; and (iv) the amount sought in funding by the Creator for the Project. Once posted on the Service, Funders may pledge funds to the Project. However, Creators should not act in reliance on any funds pledged to a Project until such time as the funds are available to be withdrawn and spent by the Creator. Each Creator acknowledges that there may be a time delay between the successful close of Project campaign and the Creator having access to the Funds.
Each Creator posting a Project through the Service hereby represents and warrants to IncitED that: (i) the Creator has a bona fide intent to complete the Project; (ii) the Creator has posted all material facts concerning the subject matter, scope, merits, feasibility and legality of the Project; (iii) that it will fulfill any Reward offered in connection with a Project; and (iv) that the Project and/or its implementation or performance by the Creator does not violate any law, regulation, statue or other applicable legal requirement of any kind.
A Creator may, but is not required to, offer certain rewards to Funders who pledge Funds to a Project (“Reward(s)”). Offering a Reward is within the discretion of the Creator, and may include, without limitation, low-cost tokens of appreciation such as postcards, bumper stickers, etc., or higher value items such as consumer electronics or media. As noted above, each Project will disclose the estimated delivery date for any Reward(s) offered and each Creator agrees make good faith efforts to fulfill the Reward by the estimated delivery date. However, in order to fulfill a Reward by the estimated delivery date, the Creator may ask that the Funder provide further information to the Creator, including without limitation, a mailing or email address. In order to receive the Reward, each Funder must, within a reasonable period of time, provide information reasonably requested by the Creator in order to fulfill the Reward time and a Creator shall not be obligated to fulfill any Reward where such information has not been provided.
A Creator may cancel or refund a Funder’s pledge at any time for any reason. If a Creator cancels or refunds a Funder’s pledge, then the Creator is not required to fulfill the Reward assuming any pledged funds are returned or reimbursed to the Funder.
Payments for Projects; Rights and Responsibilities of IncitED
IncitED does not actually hold or collect any funds pledged by Funders to a Project. Rather, when the Creator has met its funding goal in connection with the Project, IncitED and/or its payment partners, after deducting any fees owed to IncitED from such proceeds, transmit payment of the pledged amount directly to the Creator. However, because of potential failures on the part of Funders to actually pay the pledged amounts, IncitED cannot and does not guarantee that all amounts pledged by Funders to the Project will actually be paid to the Creator.
IncitED further reserves the right, in its sole discretion, to reject, delete, cancel or otherwise terminate any Project or User Profile at any time, with or without cause, and without notice to the responsible Creator or User. Similarly, IncitED reserves, the right, in its sole discretion, to reject or cancel a pledge made by a Funder to a Project at any time, with or without cause, and without notice to the responsible Funder or the responsible Creator. IncitED shall not be liable to any Funder, Creator, User or other third party for exercising any of its rights set forth in this Section.
7. Disputes Between Users. Because IncitED is a venue only, Users are solely responsible for their interactions with other Users. While IncitED shall have the right, but not the obligation, to monitor disputes between Users, IncitED shall have no liability whatsoever with respect to such disputes. For example, if there is a dispute between a Funder and a Creator with respect to a Project, including without limitation, the performance or non-performance of the Project or the methods used by the Creator to complete or perform the Project, that dispute is solely between the Creator and the Funder and does not involve or implicate IncitED, the Site or the Service and IncitED shall have no liability with respect to such dispute.
If you have a dispute with Another USER OR IF YOU SUFFER ANY LOSS OR DAMAGE AS A RESULT OF THE ACTIVITIES OR CONDUCT OF ANOTHER USER, including without limitation, a legal claim or lawsuit (Collectively, “DISPUTE(s)”) (whether or not in connection with a Project or a User Profile POSTED OR LISTED THROUGH THE SITE OR THE SERVICE), you HEREBY release AND FOREVER DISCHARGE INCITED and ITS officers, directors, VENDORS, agents, subsidiaries, joint ventureRs and employees (collectively, the “INCITED PARTIES”) FOR, from and AGAINST ANY aND ALL claims (ACTUAL OR ALLEGED), demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute AND HEREBY COVENANT NOT TO SUE OR OTHERWISE BRING ANY LEGAL ACTION WHATSOEVER AGAINST THE INCITED PARTIES ARISING FROM OR RELATED TO SUCH DISPUTES. If you are a California resident, you waive California Civil Code § 1542, which says: "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. Fees. IncitED may provide certain paid or free services associated with the use of the Site or the Service, in its sole discretion. All fees charged by IncitED may be modified or changed at any time in its sole discretion. When your use of the Site or the Service requires the payment of a fee, you will have the opportunity to review and accept the fees that you will be charged. If you do not agree to pay the fee, do not proceed with your transaction. Unless otherwise stated, all fees are quoted in U.S. Dollars. IncitED does not offer refunds. You are responsible for paying all fees and applicable taxes associated with your use of the Site or the Service in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. This includes charging other payment methods on file with us, or retaining collection agencies and legal counsel, in our discretion.
9. Accuracy of Information. From time to time there might be information on the Site or the Service, whether or not posted by IncitED or by Users as part of a User Profile or Project Listing, that is outdated or contains errors, inaccuracies, or omissions (“Inaccuracies”), including but not limited to descriptions of Projects and/or the background or identity of a User or a Creator.
For any inaccurate information provided by IncitED, we reserve the right to correct any such errors, inaccuracies or omissions at any time and we apologize for any inconvenience this may cause you. However, because IncitED does not evaluate or investigate Projects or User Profiles or otherwise perform any due diligence or research on Creators or Users, any and all information publicly posted or otherwise transmitted through the Site or the Service is the sole responsibility of the posting or transmitting User and is not the responsibility of IncitED.
The Site and/or the Service may feature, without limitation, Project listings, User Profiles, data, text, design, graphics, logos, slogans, pictures, images, music, sound files, animation, video, interfaces, icons, software code, and other information (collectively, “Content”). Content that is posted by you in connection with your use of the Site or the Service, including without limitation, Project listings and User Profiles, shall be referred to as “User Content.” User Content may also include a User’s appearance, name, likeness, and personal and biographical materials and information (collectively, “Publicity Rights”). Content that is posted by or that otherwise originates from IncitED or its affiliates or suppliers shall be referred to as “IncitED Content.”
(a) Should you post or transmit User Content to the Site or through the Service, you retain ownership of the posted User Content, but you must grant certain rights to IncitED to use the User Content. Accordingly, you hereby grant to IncitED and its designees, a royalty free, worldwide, perpetual, fully paid, nonexclusive, freely transferrable and freely sublicensable license and authority to: (i) use, edit, modify, prepare derivative works of, publicly perform, publicly display, post, transmit, playback, transcode, copy, reproduce, distribute, incorporate and otherwise fully exploit the User Content and all intellectual property rights associated therewith in connection with: IncitED’s maintenance, operation, and performance of the Site or the Service; the operation of IncitED’s business; and promoting, marketing and redistributing the Site or the Service, or parts thereof, in any and all media formats and through any and all media channels; and (ii) allow its Users to stream, distribute, transmit, playback, download, display, feature or otherwise use such User Content in connection with the Users’ use of the Site or the Service. You further represent and warrant to IncitED that: (x) you own the User Content posted by you on or through the Site or the Service, or otherwise have the legal right to post such User Content on or through the Site and/or the Service; and (y) the User Content or the posting thereof to or through the Site or the Service does not violate the privacy rights, publicity rights, intellectual property rights, or any other proprietary rights of any third party. To the extent the license rights granted in this Section do not include moral rights or rights of attribution and integrity with respect to a User’s Publicity Rights, each User hereby waives such rights to the maximum extent permitted by law and further waives any rights of preapproval, if any, in connection with such Publicity Rights.
(b) All IncitED Content featured on the Site or the Service is the property of IncitED or its affiliates, licensors or suppliers and is protected by U.S. and international Intellectual Property Rights. No IncitED Content may be copied, distributed, republished, uploaded, posted or transmitted in any way except pursuant to the express provisions of these Terms, or with our prior written consent. All rights not expressly granted to you are reserved. Modification or use of IncitED Content for any other purpose may violate IncitED’s intellectual property rights, and no title to copies or to intellectual property rights in the IncitED Content are transferred to you – all title and rights remain with us. Permission is granted to electronically copy and to print in hard copy portions of this Site for the sole purposes of: (i) obtaining a copy of these Terms and any other contract or disclosure that we are required to provide to you or that is part of our transaction with you; (ii) in connection with your internal, non-commercial use of the Site and/or the Service, subject to these Terms. Some IncitED Content may also be subject to further terms and conditions provided in connection with the particular IncitED Content. Any use of the IncitED Content other than as set forth in this Section may result in may result in immediate termination of your user privileges.
(c) The intent of the User Profile feature of the Service is to encourage Users to “crowdsouce” the ideas and skills of other educators from around the globe. Because the User Profiles are intended to create an open forum where the best and most innovative educational ideas are exchanged, any comments, feedback, suggestions, or ideas (“Feedback”) you provide through your User Profile may be used by IncitED and/or its Users. While you may continue to own all such the Feedback, you hereby grant to IncitED as well as other Users of the Service a non-exclusive, irrevocable, royalty free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback.
11. Infringement of Our Rights or the Rights of Others; Copyright Agent. You agree to respect the intellectual property rights of IncitED and others. Anyone who believes that their work has been reproduced in a way that constitutes copyright infringement may provide a notice to our copyright agent – see “Legal Notices.” We reserve the right to terminate in appropriate circumstances any account or right of access for infringement.
12. Links to or From Third Party Sites. The Site or the Service may link to other websites and some websites may link to the Site or the Service. These links may be posted by other Users or may be provided by IncitED as a convenience to you. Additionally, some services offered on or through the Site or the Service may be provided by third party service providers.
Unless IncitED specifically says so, IncitED does not endorse any third party service providers, the linked sites, or anything content on the linked sites. If you deal with a linked site or use these services, your transaction is not with IncitED so you should review the linked site's “terms of use,” other contract(s) and/or privacy policy before completing your transaction.
13. No Commercial Use. You may use the Site and the Service for your internal, non-commercial use solely for lawful purposes in compliance with these Terms. If you are using the Site or the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf, and that such entity agrees to indemnify you and IncitED for violations of these Terms, pursuant to Section 21 below.
14. Your Conduct. You agree that you will not violate any law, breach any contract or other legal duty owed to a third party, infringe or misappropriate any intellectual property right, or commit any tort, in connection with your use of the Site or the Service. You also agree not to: (i) attempt to access any area of the Site or the Service that you are not authorized to access; (ii) alter information on or obtained from the Site or the Service; (iii) use any robot, spider, scraper or other automated means or interface not provided by IncitED to access the Site or the Service or to extract data; (iv) run Maillist, Listserv, or any form of auto-responder or "spam" on the Service; (v) reverse engineer any aspect of the Site or the Service do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site or the Service (except as otherwise expressly permitted by law); (vi) modify, translate, or otherwise create derivative works of any part of the Service; (vii) copy, rent, lease, distribute, or otherwise transfer any of the rights granted to you hereunder; (viii) send to or otherwise impact IncitED or the Site or Service (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware", "adware" or other code that could adversely impact the Site, the Service, or any recipient; (ix) access or use the Site or the Service for any unlawful, unintended (by us), or harmful purpose, or other than in full compliance with applicable law and these Terms; (vii) take any action which might impose a significant burden (as determined by IncitED) on Site or Service infrastructure; (x) interfere with the ordinary operation or mission of the Site or the Service; (xi) infringe or misappropriate any patent, trademark, trade secret, copyright, right of publicity or other intellectual property right or other proprietary right; (xii) impersonate any person or entity; (xiii) abuse or misuse other Users' personal information; and (xiv) "frame" the Site or the Service or otherwise make it look like you have a relationship with IncitED or that IncitED has endorsed you for any purpose. We reserve the right to terminate in appropriate circumstances any account or right of access for unauthorized or unlawful use of the Site in violation of these Terms.
15. Accuracy of Your Information; No Impersonation. You agree to supply only accurate, current and complete information on the Site or the Service, whether in the course of registering to use the Service, posting a Project or User Profile, or otherwise using the Site or the Service. This includes not impersonating any third parties in course of using the Site or the Services. You also agree to review and correct all information that is supplied about you (such as when the Site or Service "pre-populates" information you would otherwise have to enter) or that the Site or Service draws from (such as the payment card information you keep in your User account) to ensure that it is always accurate and current. We reserve the right to purge or delete information stored by you in our discretion.
16. NO WARRANTIES REGARDING THIS SITE. YOU AGREE THAT THE SITE, THE SERVICE AND ALL INCITED CONTENT (AS DEFINED IN 10) ASSOCIATED THEREWITH ARE PROVIDED BY US OR ANY OF OUR EXISTING OR FUTURE VENDORS, AFFILIATES OR AGENTS "AS IS" AND "WITH ALL FAULTS," AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. INCITED DOES NOT MAKE ANY REPRESENTATIONS OR EXPRESS WARRANTIES AND DISCLAIMS ALL SUCH WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, ACCURACY, COMPLETENESS, PRIVACY OR SECURITY AND ANY IMPLIED WARRANTIES CREATED BY TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE FURTHER DISCLAIM ALL DUTIES TO YOU, IF ANY SUCH DUTIES EXIST, INCLUDING BUT NOT LIMITED TO REASONABLE CARE, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. IF A DUTY CANNOT BE DISCLAIMED, YOU AGREE THAT THE STANDARD USED TO MEASURE INCITED’S PERFORMANCE OF THAT DUTY WILL BE INTENTIONAL MISCONDUCT. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY ASPECT OF THE SITE, OR AGAINST INFRINGEMENT. YOU EXPRESSLY WAIVE ALL DUTIES, CONDITIONS AND ALL WARRANTIES THAT MIGHT EXIST BUT FOR THIS PARAGRAPH. YOU ACKNOWLEDGE THAT INCITED HAS no control over WHO USES THE SITE OR THE SERVICE and doES not guarantee the quality, safety or legality of PROJECTS LISTED, the truth or accuracy of ANY user contenT, PROJECT listings, OR USER PROFILES, the ability of CREATORS to COMPLETE A PROJECT, OR the ability of FUNDERS to pay PLEDGED AMOUNTS. ALL RISK IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICE IS WITH YOU.
ELECTRONICS COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. § 2701-2711): INCITED MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR information TRANSMITTED ON THE SITE OR ANY THIRD PARTY WEBSITE LINKED TO THE SITE. INCITED WILL NOT BE LIABLE FOR THE PRIVACY OF EMAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE SECRET INFORMATION, OR ANY USER CONTENT STORED ON INCITED’S EQUIPMENT , TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.
17. LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER INCITED NOR ANY OF ITS EXISTING OR FUTURE AFFILIATES, SUPPLIERS OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, FOR LOSS OR IMPAIRMENT OF PRIVACY, SECURITY OR DATA, FOR FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, WORKMANLIKE EFFORT OR OF LACK OF NEGLIGENCE), OR FOR ANY OTHER SIMILAR DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO ANY BREACH OR OTHER ASPECT OF THESE TERMS, THE SITE OR THE SERVICE, EVEN IF INCITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR MISREPRESENTATION.
18. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY. REGARDLESS OF SECTIONS 7, 16 AND 17 OF THESE TERMS, IF INCITED IS FOUND LIABLE, INCITED’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE LESSER OF: (i) THE FEES YOU HAVE PAID TO INCITED, IR ANY, IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY; OR (ii) $100. THE DAMAGE EXCLUSIONS AND LIMITATION OF LIABILITY IN THESE TERMS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Termination or Cancellation. As noted above, these Terms are a legally binding agreement between you and IncitED with respect to your use of the Site and the Service. Either we or you may terminate this agreement with or without cause or prior notice. You will still be liable for payment of any amounts due or other obligations incurred prior to termination, and if you use the Site or the Service after such termination, that use will constitute your new agreement to these Terms. If applicable law requires IncitED to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site or by sending a communication to any address (email or otherwise) that we have for you in our records. IncitED’s rights under these Terms that by their terms, nature, sense or context are intended to survive the termination of these Terms shall survive such termination. Without terminating your right to use the Site or the Service pursuant to these Terms, we may suspend or block your access to the Site or the Service whenever it appears to us that you might be breaching these Terms or otherwise about to cause harm or damage to us or others.
20. Applicable Law and Exclusive Forum. This Site is controlled by us from our offices within the United States of America and is directed to U.S. users. If you choose to access this Site or use the Service from locations outside the U.S., you do so at your own risk and are responsible for compliance with applicable local laws. You may not use or export anything from the Site and/or the Service in violation of U.S. export laws and regulations or these Terms. You agree that these Terms, all performances and all claims of every nature (including without limitation, contract, tort and strict liability) relating to any aspect of the Site or the Service shall be governed by the laws of the State of Oregon, U.S.A., without regard to its conflict of law provisions and without regard to where performance is made. You agree that any disputes shall be heard exclusively in an appropriate forum located in Multnomah County, Oregon. You also consent to jurisdiction in a state or federal court sitting in Multnomah County, Oregon and waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by Oregon or federal law.
21. Indemnity. You agree to indemnify, defend and hold the IncitED Parties harmless for, from and against any and all losses, liabilities, expenses, damages, fees, penalties, claims or demands (actual or alleged), including reasonable attorneys' fees, arising out of or related to your breach of these Terms, your violation or infringement of any law or the rights of any third party, including any third party intellectual property rights, or the use of your User account by a third party. IncitED reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to reasonably assist and cooperate with IncitED in the defense thereof.
22. Notices, Including Our Address for Legal Notices.
(a) We may give you notice by any lawful method, including (without limitation) legal notices and notice of subpoenas. We may provide the notices by posting them on the Site or by giving them by email or postal mail to any address that we have for you. You agree to update your address as appropriate and to check for notices posted on the Site.
(b) You agree to send us notice by mailing it to "Our Address for Legal Notices" which is IncitED, Inc., Attn: Legal Notices, 5606 NE 16th Street, Portland, OR 97211, U.S.A., or by emailing it to us at [email protected].
23. Amendments. You agree that we may amend these Terms from time to time, including by changing anything in these Terms ("Amendments"). With respect to the text of these Terms, we will post a new version of the Terms on the Site prior to the effective date of the amended version ("Effective Date") – we will try to do that ten (10) days before a new version becomes effective, but we reserve the right to provide lesser or subsequent notice as we think advisable (such as in an emergency or to prevent harm to us or others). We may also give notice by another method, including by email. You agree periodically to check for notice of an amended version and to review that version. The Effective Date of each version will usually be shown at the beginning of the Terms document: if you see a date that is later than the date you last reviewed the Terms, review the most recent version because it will apply as of its Effective Date and until the next version is posted (and the ten-day period referenced above, if applicable, has passed). No Amendments will be effective unless we post them on our Site. You agree that USING THE SITE AFTER THE EFFECTIVE DATE OF THE AMENDED VERSION OF THESE TERMS WILL CONSTITUTE YOUR AGREEMENT TO THE AMENDED VERSION. Notwithstanding the foregoing, you agree that without amending these Terms pursuant to this Section, we may change other Site information (other than the text of these Terms) in our sole discretion.
24. Agreement; Miscellaneous. These Terms, which incorporate by reference any: (i) additional terms on the Site or otherwise provided by us for particular activities; and (ii) disclosures provided by us and consents provided by you on the Site, constitute the entire agreement between us and neither party has relied on any representations made by the other that are not expressly set forth in the Terms. If any part of the Terms is found by a court of competent jurisdiction to be invalid, then that part will be deemed superseded by an enforceable provision that most closely matches the intent of the original and honors the allocation of risks in these Terms and the remainder of the Terms will continue in effect. Our failure to act with respect to a breach does not waive our right to act as to subsequent or similar breaches, and time is of the essence of the Terms. There are no third party beneficiaries of any part of the Terms These Terms are personal to you, and are not assignable, transferable, or sublicensable by you except with IncitED’s prior written consent, which IncitED may withhold for any reason or no reason. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys' fees.
25. Legal Notices. Various laws require or allow us to give users of this Site certain notices and each of them is incorporated into these Terms.
26. Further Information. If you would like to receive our legal name and address by email, you need to provide us your email address by sending your request, in writing, to Our Address for Legal Notices. If you have a complaint, you may contact us at the address(es) set forth in Section 22.
27. Notice of Copyright Agent. IncitED respects the intellectual property rights of others and requests that you do the same. Anyone who believes that their work has been reproduced in the Site or the Service in a way constituting copyright infringement may provide a notice to the designated Copyright Agent for the Site containing the following: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; (iv) the address, telephone number, and, if available, an email address at which the complaining party may be contacted; (v) a representation that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a representation that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of our Copyright Agent, in the following manner:
by mail: IncitED, Inc., 5606 NE 16th Street, Portland, OR 97211, Attn. Copyright Agent
by email: [email protected]
28. Notice: No Harvesting Allowed. WE WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES MAINTAINED BY US TO ANY OTHER PARTY FOR THE PURPOSES OF INITIATING, OR ENABLING OTHERS TO INITIATE, ELECTRONIC MAIL MESSAGES EXCEPT AS AUTHORIZED AS APPROPRIATE BY OUR PERSONNEL OR POLICIES. EXCEPT FOR PARTIES AUTHORIZED TO HAVE ADDRESSES MAINTAINED BY US, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (1) INITIATE THE TRANSMISSION TO OUR COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OF SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
28. Notice About Trademarks. INCITED™ and associated INCITED™ logos are trademarks of IncitED, Inc. All other trademarks and logos on the Site or the Service are the property of their respective owners. All rights are reserved.