PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES PROVIDED ON WEBOPENINGS.COM. BY USING WEBOPENINGS.COM, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND WEBOPENINGS, Inc.'S ACCEPTANCE OF YOUR USE OF THE WEBOPENINGS.COM WEBSITE IS EXPRESSLY CONDITIONED UPON YOUR CONSENT TO THESE TERMS AND CONDITIONS.
These Terms and Conditions, as such may be modified from time to time in accordance with the provisions below (the "Terms"), constitute a legal agreement between WEBOPENINGS, INC ("WebOpenings" or "we") and users ("Users" or "you") of WebOpenings.com and its subdomains (collectively, the "Site"). In consideration of using and accessing the Site and the other promises and obligations contained herein, you agree to these Terms and understand and acknowledge that you are bound by the following provisions. If you do not agree to these Terms, do not access or use the Site. You may receive a copy of these Terms by e-mailing us at firstname.lastname@example.org.
It is our desire for the Site to be used as a mechanism for participating service providers (each a "Participating Business") to market certain available services to you and facilitate your ability to retain a Participating Business to render their applicable services to you. The Participating Businesses are neither employees nor agents of WebOpenings. Further, in no event shall WebOpenings be deemed a broker or booking agent of a Participating Business. Should you have a dispute with any Participating Business, you must address such dispute with the Participating Business directly and WebOpenings shall have no further liability or obligation with respect thereto. The rights and responsibilities of WebOpenings and the Users are described in these Terms and shall promote the ideas outlined in this Section I.
You acknowledge and agree that your access to and use of the Site is subject these Terms (as such Terms may be modified from time to time as provided for herein). WebOpenings shall have the right at any time and without prior notice, at its sole discretion, to amend and revise these Terms or to impose new terms and conditions with respect to access to or use of the Site (the "Modified Terms"). The Modified Terms shall be effective upon its posting on the Site. Each User is responsible for visiting the Site periodically to review the Terms. Any access or use of the Site by you after the posting the Modified Terms (and, if applicable, any notice relating to the Modified Terms) shall constitute your agreement to the Modified Terms.
III. Use of Site.
(a) License to Use. Subject to your compliance with these Terms, WebOpenings hereby grants you a limited, nonexclusive, nontransferable, personal and revocable license to access and use the Site for your personal and noncommercial use. Specifically, you agree to use the Site to find specific Participating Businesses offering services and to make reservations with such Participating Businesses for such services. You acknowledge that the Site utilizes usernames and passwords to enable access to the Site and that you should only have the right to use a single username and password that you designate and identify to WebOpenings. As a condition for using the Site and receiving a password, the User shall provide WebOpenings with accurate, complete and updated registration information, including, User's e-mail address. WebOpenings reserves the right to refuse registration of, or cancel use of the site by, any User, as determined in WebOpenings's sole discretion. Each User is solely responsible for any use of or action taken under a User's password and accepts full responsibility for all activity conducted through User's account and hereby releases WebOpenings from any and all liability concerning such activity. Unauthorized access to or use of the Site is a breach of these Terms and a violation of law. Further, by accessing and using the Site, you represent and warrant that you are not located under the control of, or a national or resident of any country or on any list which, according to United States law, would prohibit or restrict you from using or accessing the Site. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor or copy any part of the Site.
(b) Restrictions and Limitations. You are solely responsible for accessing the Site, using the Site and for your interactions with other Users and, if applicable, Participating Businesses with whom you interact through the Site. Any fraudulent, abusive or otherwise illegal activity may be grounds for immediate termination of your right to use the Site. Without limiting the foregoing, you may not, in whole or in part: (a) copy, distribute, transmit, display, perform, reproduce, publish, license, rewrite, create derivative works from, transfer, or sell any Content (as defined below) or other material contained on this Site; (b) reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Site or any part thereof, except as otherwise permitted by law; (c) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Site or any part thereof to third parties; (d) use the Site to act as an application service provider, or to permit remote access to the Site to any third party; (e) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of any User Content; (g) restrict or inhibit any other user from using and enjoying any public area within the Site; (h) collect or store personal information about other users of the Site, or post personal information about any person on the site without their express permission; (i) frame the Site or putting pop-up windows over its pages; (j) use any automated means to access or use the Site or to collect any Content contained therein; (k) publish any product or service review more than once, or publishing any product or service review for a product or service for which you have a direct or indirect financial or other interest; (l) modify or create variant versions of WebOpenings's name, trademarks or logos; (m) interfere with or disrupt the Site or its infrastructure; (n) impersonate any person or entity, including, but not limited to a WebOpenings representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (o) take any action that imposes an unreasonably or disproportionately large load on the Site or its infrastructure; (p) engage in antisocial, disruptive, or destructive acts, including "flaming," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the Internet; or (q) engage in any acts or omissions that could constitute a violation of these Terms or any applicable laws, statutes, regulations, rules or ordinances. Without limiting any term or provision herein, your failure to comply with any of the foregoing conditions (as determined by WebOpenings, in its sole and absolute discretion) shall constitute a violation of these Terms and result in the immediate revocation of your license to use the Site without further notice and may result in WebOpenings availing itself of all remedies available to it at law, in equity or any combination thereof, and such shall require you to reimburse and indemnify WebOpenings of all costs and expenses incurred by WebOpenings (including all attorneys' fees.)
(c) Participating Business Webpage. Users may gain access from the Site to a webpage providing information on a Participating Business ("Participating Business Webpage"). WebOpenings makes no representation or warranty about any content displayed on a Participating Business Webpage and WebOpenings does not endorse or opine to any product or service offered on any such Participating Business Webpage. WebOpenings hereby disclaims: (a) all responsibility and liability for any content displayed on a Participating Business Webpage; and (b) all responsibility and liability for any services or goods sold on Participating Business Webpage or any actions by such Participating Business relating to any goods or services sold thereon. In furtherance thereof, you hereby irrevocably waive any claim against WebOpenings with respect to such Participating Business Webpage and third party content.
(a) Reservation Procedure; Cancellation Policy. The Site enables you to search for services that are offered by Participating Businesses based upon your individual preferences including, your preference of time, location and particular service provider. The availability of the services depends on the inventory of services available at the time of your reservation request and is subject to change. We make no representation, warranty or promise relating to any availability of any service offered by any Participating Business. In the event that you shall desire to make a reservation on the Site, you may select from one of the available inventory time slots (each a "Time Slot") offered on the Site for such service. Upon your reservation and selection of a Time Slot (an "Appointment"), WebOpenings will immediately and automatically charge your credit card (based upon the information provided by you to WebOpenings during your registration to use the Site) an amount equal to the Participating Business Fee (the "Fee") identified when you shall reserve an Appointment. In addition, WebOpenings shall have the right to charge you a processing fee, and the amount of such processing fee will be disclosed to you prior to purchasing your appointment. In the event that you shall cancel your Appointment prior to twenty-four (24) hours of the Appointment's start time, the Fee (and any applicable processing fee) shall be refunded to you. In the event you should desire to cancel or modify your reservation request within twenty-four (24) hours of the Appointment's start time, neither the Participating Business nor WebOpenings shall be obligated to accommodate such request and refund any amounts to you. For purposes of clarification and the avoidance of doubt, in no event shall WebOpenings have any liability, responsibility or obligation to take any action to modify or cancel any Appointment within twenty-four (24) hours of the Appointment's start time and you acknowledge and agree that if you fail to cancel your reservation in a timely manner or otherwise in accordance with the cancellation policies set forth in these Terms or identified by the Participating Business you will be responsible to pay the Fee and all other costs identified by the Participating Business as being due and payable to it.
(b) Credit Card Information. In the event that you shall make an Appointment on the Site, you will be required to provide your credit card information to WebOpenings and the Participating Business. Your credit card will only be charged should you fail to cancel your Appointment in a timely manner and otherwise in accordance with the reservation policies set forth in these Terms and the individual reservation policies of the Participating Business.
(c) Termination of Account. Your account with WebOpenings may be terminated if you fail to honor your Appointments, as determined by us, in our sole and absolute discretion. You acknowledge that WebOpenings and/or a Participating Business may not accept your requested Appointment as a result of previous no-shows or late cancellation(s). You acknowledge and agree that all determinations regarding a User's failure to cancel a reservation in a timely and proper manner shall be determined by the Participating Business or WebOpenings, in its sole and absolute discretion.
(d) Rewards Points. WebOpenings may, in the future, offer a loyalty reward program for its Users. The terms and conditions of such reward loyalty program shall be determined in the future by WebOpenings and, in the event such program is offered, these Terms will be modified in the manner provided herein.
V. Site Content.
(a) Submission of User Content.
(i) By contributing or submitting any text, files, images, materials, information, ideas, suggestions, ratings, reviews, recommendations or other content to WebOpenings (whether through its posting on the Site or otherwise), (collectively, the "User Content"), you warrant and represent that you are the owner of all intellectual property and proprietary rights in such User Content (or you otherwise have the right to grant the license set forth in this Section V to the User Consent), and you grant WebOpenings (and our licensees, distributors, affiliates, partners, agents, representatives and other authorized users) a worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable right and license to use, re-use, copy, modify, delete in its entirety, adapt, publish, host, store, cache, archive, index, categorize, comment on, broadcast, stream, translate, publicly perform, publicly display, exhibit, create derivative works from and/or sell and/or distribute, re-distribute, publish, transmit and disseminate and/or incorporate or otherwise exploit such User Content in, with, into or through any form, medium or technology (whether now known or hereinafter developed) without compensation to you, without obtaining your permission or providing attribution, and for any and all purposes including, without limitation, news, advertising, promotional, marketing, publicity, trade or commercial purposes. In addition, you warrant that all "moral rights" that you may have in such User Content have been voluntarily waived by you, and you agree that the license in this paragraph includes, without limitation, the right for WebOpenings, its affiliates and partners to use any name, likeness, image and other identifying characteristics that are embodied or incorporated into any User Content and which shall be considered part thereof for the purposes of these Terms. None of the User Content shall be subject to any obligation of confidence on the part of WebOpenings or any third party. After posting your User Content on the Site, you shall continue to retain all ownership rights in such User Content and you shall continue to use your User Content in any way you choose. You agree that any User Content you provide is not being provided in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way.
(ii) You acknowledge that you are solely responsible for all User Content that you post on or disseminate through the Site, including all materials and information transmitted about Participating Business or to other Users of the Site. You acknowledge and agree that all User Content, including without limitation, any recommendations and reviews of Participating Business will be accessible by other Users and the Participating Business, itself. WebOpenings may in its sole and absolute discretion screen User Content in advance but is not responsible for screening or monitoring information or material posted by Users or any other person or entity. WebOpenings reserves the right to, from time to time, refuse, move, remove, change, condense or delete any User Content on the Site (including, without limitation, any reviews, recommendations or other information pertaining to a Participating Business) in WebOpenings's sole discretion. Without limiting the foregoing, if notified by a User of any User Content that does not conform to these Terms, WebOpenings may review the claim and determine in its sole discretion to remove or request the removal of the User Content. WebOpenings reserves the right (but is not obligated) to remove User Content that is abusive, illegal, disruptive or that otherwise fails to conform with these Terms and/or to edit or delete any User Content, regardless of whether such content violates these Terms. WebOpenings reserves the right (but is not obligated) to monitor, edit, disclose or record any User Content for adherence to these Terms. WebOpenings may exercise these rights if required, in the course of normal operations and maintenance of the Site, or in the good faith belief that such action is necessary to: (i) comply with the law or with legal process served; or (ii) protect and defend the rights of Users, WebOpenings or others. WEBOPENINGS HAS NO LIABILITY OR RESPONSIBILITY TO USERS OR ANY OTHER PERSON OR ENTITY FOR PERFORMANCE OR NONPERFORMANCE OF THE AFOREMENTIONED SCREENING ACTIVITIES.
(iii) You understand, acknowledge and agree that when you delete User Content from the Site it is deleted but such removed User Content may persist, in backup copies for a reasonable period of time (but will not be available to other users of the Site).
(iv) You agree that you shall not post, publish, submit or otherwise disseminate any User Content or other information through the site: (a) that is known by you to be false, inaccurate or misleading (including, without limitation, creating a fictitious account with false information); (b) that violates, infringes or misappropriates any third party's copyright, patent, trademark, trade secret, right of privacy, right of publicity or other intellectual property or proprietary right; (c) that violates any law, statute, regulation, rule or ordinance (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (d) that is, or may reasonably be considered to be, defamatory, libelous, hateful, profane, abusive, racially, religiously or otherwise biased or offensive, unlawfully threatening or unlawfully harassing to any individual or entity, or otherwise contains foul language; (e) for which you were compensated or granted any consideration by any third party; (f) that contains any computer viruses, worms or other potentially damaging computer programs or files; (g) harasses or advocates harassment of another person; (h) exploits people in a sexual or violent manner; (i) involves the transmission of "junk mail", "chain letters" or unsolicited mass mailing, instant messaging, "spimmins," or "spamming"; (j) solicits passwords or personal identifying information for commercial or unlawful purposes for other users; or (k) includes any information or photograph of another person without such person's consent. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SUBJECT TO CRIMINAL AND CIVIL PENALTIES IF YOU POST OR UPLOAD ANY USER CONTENT THAT IS COPYRIGHTED OR CONTAINS ANY PROPRIETARY RIGHTS OF ANOTHER THIRD PARTY.
(b) WebOpenings Content.
The Site (and the services offered by WebOpenings on the Site) contains certain information, materials, files or content of WebOpenings (collectively "WebOpenings Content"). No WebOpenings Content comprising, contained in or distributed through the Site may be reproduced in any form or used by you without the prior written consent of WebOpenings. The Site and the WebOpenings Content found therein are the property of WebOpenings and are protected by copyright laws and international treaty provisions. You acknowledge that WebOpenings or its licensors (as applicable) own and shall retain the exclusive right, title and ownership in and to all copyrights, trade secrets, trademarks and other intellectual property and proprietary rights in the Site and all WebOpenings Content. For purposes herein, the term "Content" shall include User Content and WebOpenings Content.
(c) Participating Business Content.
(i) The Content on the Site may include information relating to Participating Business and their products, services and opportunities, and links to such Business and their online resources. Such Content may include, without limitation, postings by users in different areas of the Site, data files, written text (e.g., reviews, recommendations, articles, etc.), computer software, music, audio files, video files, web casts photographs or other images. The Content on the Site may also include a variety of information and reviews and opinions on a wide range of topics. Some Content will be provided directly by WebOpenings or Participating Businesses (or agents or representatives working on their behalf). In other instances, Content may be provided by experts who may or may not be compensated by WebOpenings or affiliated with WebOpenings in any manner. WebOpenings does not warrant that product, service or opportunity descriptions, pricing, editorial, opinion or other commentary on services offered by a Participating Business or any other Content, regardless of its source, is accurate, complete, reliable, current, of good quality or error-free. All Content is provided for informational purposes only and does not constitute an endorsement, recommendation, sponsorship or approval of such Content, or any product, service, or opportunity of or provided by a Participating Business or by WebOpenings. You should not rely on such information including, without limitation, in situations where its inaccuracy would or could cause you or any other third party to incur any loss, damage, liability or injury (including, without limitation, personal injury or death).
(ii) The products and services offered by Participating Business are sold or provided by such Participating Business and not by WebOpenings, nor is WebOpenings or the Site acting as agent for such Participating Businesses in the provision of such Participating Business products and services including, without limitation, with respect to any free product samples you may obtain through the use of the Site. Reviews, ratings and other Content (e.g., video, web casts, etc.) on the Site are from our users, partners or vendors who have elected to provide such materials on the Site. WebOpenings disclaims any responsibility for, or liability related to, such products and services (or any information relating thereto), and you agree to address any questions, complaints or claims solely to the appropriate Participating Business of such products or services and not to WebOpenings. Links to other Internet sites operated by Participating Businesses, including service providers featured on WebOpenings, do not constitute sponsorship, endorsement or approval by WebOpenings of the content, policies or practices of such linked sites.
(iii) WebOpenings expressly disclaims any and liability for the accessing of any data or communications or other Content on the Site by unauthorized persons and entities.
(d) DISCLAIMER OF WARRANTIES AND REPRESENTATIONS IN FURTHERANCE OF THE FOREGOING, THE SITE, AND THE CONTENT CONTAINED IN AND DISSEMINATED FROM THE SITE, ARE PROVIDED "AS IS," "AS AVAILABLE," "WITH ALL FAULTS" AND WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (ALL OF SUCH IMPLIED WARRANTIES AND REPRESENTATIONS BEING HEREBY EXPRESSLY DISCLAIMED). YOU ASSUME THE ENTIRE RISK (1) AS TO YOUR ACCESS TO AND USE OF THE SITE, AND YOUR SELECTION AND USE OF ANY CONTENT OBTAINED THROUGH OR FROM THE SITE, (2) YOUR USE OF ANY PARTICIPATING BUSINESS, AND (3) THAT THE SITE AND/OR THE CONTENT WILL MEET YOUR REQUIREMENTS, BE ACCURATE OR RELIABLE, HAVE ANY LEVEL OF QUALITY OR MEET YOUR EXPECTATIONS. WEBOPENINGS MAKES NO WARRANTY OR REPRESENTATION THAT YOUR ACCESS TO AND USE OF THE SITE OR THE CONTENT WILL BE UNINTERRUPTED, VIRUS FREE, ERROR-FREE OR COMPLETELY SECURE. WEBOPENINGS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO PARTICIPATING BUSINESS PRODUCTS, SERVICES OR OPPORTUNITIES OFFERED BY PARTICIPATING BUSINESSES. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM HARDWARE OR SOFTWARE, OR FOR ANY LOSS OF DATA OR OTHER DAMAGES, RELATING TO YOUR USE OF THE SITE OR THE CONTENT. ANY ISSUES ARISING OUT OF OR RELATING, DIRECTLY OR INDIRECTLY, TO PARTICIPATING BUSINESS PRODUCTS, SERVICES OR OPPORTUNITIES (INCLUDING, WITHOUT LIMITATION, PRODUCTS OR SERVICES PROVIDED BY OR PURCHASED FROM PARTICIPATING BUSINESSES MUST BE RESOLVED SOLELY AND DIRECTLY WITH THE PARTICIPATING BUSINESS PRODUCTS, SERVICES OR OPPORTUNITIES. NO ADVICE, INFORMATION OR CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM, THROUGH OR IN CONNECTION WITH YOUR USE OF THE SITE OR THE CONTENT, WILL CREATE OR PROVIDE ANY WARRANTY OR REPRESENTATION ON THE PART OF WEBOPENINGS.
FURTHER, WEBOPENINGS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE QUALITY OF THE SERVICES PROVIDED BY A PARTICIPATING BUSINESS AND IN NO EVENT SHALL WEBOPENINGS BE DEEMED TO GUARANTEE, ENDORSE OR OPINE TO ANY OF THE SERVICES OFFERED BY A PARTICIPATING BUSINESS.
Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. In such jurisdictions, the liability of WebOpenings shall be limited to the greatest extent permitted by applicable law. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
(e) Assumption of Risk. While using the Site, you may be exposed to Content that you find offensive, indecent, profane, objectionable or inaccurate, and you bear all risks associated with your access to or use of such Content. We have the right, but not the obligation, to remove any Content that may (in our sole discretion) violate these Terms or that we may otherwise decide should be removed from the Site (in our sole discretion).
WebOpenings cannot and does not assure that other Users are or will be complying with these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance. However, it is acknowledged and agreed that it shall be a violation of these Terms to use any Content obtained from this Site to abuse or harm another Participating Business or to contact, advertise to, solicit or sell to any User without the prior written consent of such User.
WE DO NOT GUARANTEE THAT THE SITE WILL BE SAFE OR SECURE. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR CONTENT OF THIRD PARTIES (INCLUDING OTHER USER AND PARTICIPATING BUSINESS). YOU HEREBY DISCLAIM, WAIVE AND RELEASE WEBOPENINGS AND COVENANT NOT TO SUE WEBOPENINGS FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, JUDGMENTS, INJURY, LOSS, DAMAGES, EXPENSES AND DEMANDS WHICH MAY ARISE IN CONNECTION WITH YOUR USE OF, RELIANCE ON, OR REFERENCE TO THE SITE INCLUDING, WITHOUT LIMITATION, ANY SERVICES OFFERED BY PARTICIPATING BUSINESSES OR THE PARTICIPATING BUSINESS THEMSELVES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CODE SECTION 1542 WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITORS 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.
You agree to defend, indemnify and hold harmless WebOpenings, its affiliates, vendors, partners, and each of their respective directors, officers, members, managers, employees, agents and representatives from and against any and all claims, actions, losses, damages, liabilities, judgments, settlements, costs and expenses (including, but not limited to, reasonable attorneys' fees and court costs) arising out of or relating to (a) your breach of these Terms, (b) your access to or use of the Site and/or the Content, (c) any User Content provided by you or on your behalf, specifically, including, without limitation, any review or content you provide regarding a Participating Business, or the subsequent use and access thereto by third parties, (d) your violation, breach or misappropriation of a third party's copyright, patent, trademark, trade secret, right of privacy, right of publicity or other intellectual property, proprietary or other right, (e) your tortuous acts including, without limitation, defamation, libel, slander or other acts regarding a Participating Business or other third party and/or (f) any claims you may raise against third parties relating to third party products or services. We reserve the right to assume, at our expense, 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 such claims. If we assume such defense, we will be responsible solely for our legal fees in connection with such defense and all other losses, damages, liabilities, judgments, settlements, costs and expenses shall be your sole responsibility.
X. Limitation of Liability and Exclusive Remedy.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WEBOPENINGS OR ANY MEMBER, MANAGER, OFFICER, DIRECTOR, EMPLOYEE, REPRESENTATIVE OR AGENT (COLLECTIVELY WITH WEBOPENINGS THE "WEBOPENINGS PARTIES") BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS): (A) ANY ACT OR OMISSION OF A PARTICIPATING BUSINESS; (B) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE, EVEN IF WEBOPENINGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FROM YOUR USE OR INABILITY TO USE THE SITE, YOUR USE OF ANY SERVICE PROVIDED BY A PARTICIPATING BUSINESS, OR ANY OTHER BREACH OF THESE TERMS BY WEBOPENINGS SHALL BE FOR YOU TO DISCONTINUE USE OF THE SITE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES.
IF, NOTWITHSTANDING THE PROVISIONS OF THE TERMS, ANY WEBOPENINGS PARTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED TO YOUR ACCESS TO OR USE OF THE SITE (OR ANY SERVICES PROVIDED BY A PARTICIPATING BUSINESS), THE CONTENT OR OTHERWISE, THE AGGREGATE LIABILITY OF THE WEBOPENINGS PARTIES SHALL IN NO EVENT EXCEED THE GREATER OF (A) THE TOTAL OF ANY FEES (IF ANY) PAID BY YOU TO WEBOPENINGS IN THE SIX MONTH PERIOD PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST THE WEBOPENINGS PARTIES (OR ANY ONE OR MORE OF THEM), OR (B) $150.00 USD. YOU AGREE TO USE YOUR BEST EFFORTS TO MITIGATE ANY DAMAGES OR LOSSES YOU MAY SUFFER IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND THE CONTENT.
No action, regardless of form, arising out of any transaction under these Terms, may be brought by you more than one year after you have knowledge of the occurrence which gives rise to the cause of such action.
You may terminate your membership and use of the Site at any time by contacting email@example.com. Further, your right to access and use the Site will automatically terminate without notice, if you breach any provision of these Terms. You agree that WebOpenings may terminate your use of this Site, remove any User Content submitted by you and/or exercise any other remedy available to it if WebOpenings believes that you have violated or acted inconsistently with the letter or spirit of these Terms, or violated the rights of WebOpenings or any third party, or for any reason with or without notice to you. WEBOPENINGS RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT OR DISCONTINUE THE SERVICE OR ANY PORTION OR FEATURE THEREOF FOR ANY OR NO REASON AND AT ANY TIME IN WEBOPENINGS'S SOLE ABSOLUTE DISCRETION. You agree that WebOpenings will not be liable to you or any third party as a result of such modification or discontinuation. The following Sections shall survive termination of these Terms: ((V(d), V AND VI THROUGH XVII) and all other sections that may be reasonably interpreted to or are intended to survive these Terms.
XII. No Endorsement.
WEBOPENINGS DOES NOT PROMOTE OR ENDORSE ANY PARTICIPATING BUSINESS. ANY AND ALL THE OPINIONS EXPRESSED ON PARTICIPATING BUSINESS WEBPAGES AND OTHERWISE ON THE SITE (INCLUDING ANY REVIEWS OR TESTIMONIALS OF ANY OF THE PRODUCTS OR SERVICES TO BE PROVIDED BY PARTICIPATION BUSINESS ARE THE OPINIONS OF THE USERS OF THE SITE AND ARE NOT THE OPINIONS, BELIEFS, FINDINGS OR EXPERIENCE OF WEBOPENINGS OR ITS MEMBERS, MANAGERS, OFFICERS OR ITS AFFILIATES AND IN NO WAY WHATSOEVER DOES WEBOPENINGS, ITS MEMBERS MANAGERS, OFFICERS OR AFFILIATES ENDORSE OR OPINE TO ANY PARTICIPATING BUSINESS OR PRODUCT OR SERVICE OFFERED BY A PARTICIPATING BUSINESS OR OTHERWISE IDENTIFIED ON THE SITE.
XIII. E-Mail Communications.
By accessing the Site and making reservations on the Site you acknowledge your receipt of e-mail communications relating thereto, including, without limitation, reservation confirmations, cancellation confirmations, reward balance updates, if applicable, and other correspondence relating to the Site and/or services offered by Participating Businesses. You agree that by accessing and using the Site, you may be contacted by us and/or a Participating Business for any purpose relating to the Site and/or the services offered by a Participating Business.
XIV Copyright Complaints.
We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the Site any materials that violate another party's intellectual property rights. When we receive proper notification of an alleged copyright infringement, we will promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to us at the contact information described below.
All notices of such claims of copyright infringement on or regarding WebOpenings is:
301 East 22nd Street, 9J
New York, New York 10010
If you believe Content on the Site infringes your copyright rights (such Content being referred to as the "Disputed Items"), you should send notice of alleged copyright infringement to the above-referenced contact person. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. §512) by providing the following information:
(1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right this is allegedly infringed;
(2)Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(3)Identification of the Disputed Items that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; and
(4)Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(5)A statement that the complaining party has a good faith believe that use of the Disputed Items in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6)A statement that the information in the notification 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. To learn more, see 17 U.S.C. 512.
Once you provide WebOpenings with an adequate notice as described above, WebOpenings will act expeditiously to remove or disable access to the Disputed Item. WebOpenings will also take reasonable steps to promptly notify the user that provided the Disputed Item. If the User does not believe it has infringed your copyrights, then the user may provide WebOpenings with a counter notification containing the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act:
(1) The users physical or electronic signature;
(2)Identification of the Disputed Item that has been removed or to which access has been disabled and the location at which the Disputed Item appeared before it was removed or access to it was disabled;
(3)A statement under penalty of perjury that the user has a good faith belief that the Disputed Item was removed or disabled as a result of mistake or misidentification;
(4)The user's name, address and telephone number, and a statement that the user consents to the jurisdiction of Federal District Court for the judicial district in which the user's address is located, or if the user's address is outside of the United States, for any judicial district in which WebOpenings may be found, and that the user will accept service of process from the person who provided notification of the alleged infringement.
In the event that WebOpenings receives a counter notification in compliance with the above requirements, it will provide you with a copy of the counter notification and inform you that WebOpenings will replace the removed material in 10 business days from the date of the counter notification unless WebOpenings first receives notice from you that you have filed an action seeking a court order to restrain the user from engaging in the allegedly infringing activity of uploading the Disputed Item to the Site.
In accordance with Digital Millennium Copyright Act and other applicable law, WebOpenings has adopted a policy of terminating, in appropriate circumstances and WebOpenings's sole discretion, Users who are deemed to be repeat infringers. WebOpenings may also at its sole discretion limit access to the Site and/or terminate the memberships of any Users who infringe any intellectual property rights of others whether or not there is any repeat infringement.
PLEASE NOTE THAT WEBOPENINGS INTENDS TO COMPLY WITH ALL PROVISIONS OF THE DIGITAL MILLENNIUM COPYRIGHT ACT BUT WILL NOT UNILATERALLY TAKE RESPONSIBILITY FOR POLICING AND REMOVING MATERIAL THOUGHT TO BE INFRINGING.
The Site is and contains confidential and proprietary information of WebOpenings. You agree to hold in strict confidence, not to use or disclose to any third party, and to take all necessary precautions to secure the confidentiality of any nonpublic information of WebOpenings (collectively "Confidential Information"). You agree to take all steps necessary to safeguard the Confidential Information against unauthorized disclosure, reproduction, publication, or use, and to satisfy your obligations hereunder. In accordance with this provision, you will maintain at least the same precautions as you take in regard to your own confidential information, but not less than reasonable care. You will not at any time, during or after the conclusion of your use of the Site, directly or indirectly, divulge or disclose for any purpose or use for its own benefit or for the purposes or benefit of any other person any Confidential Information. You shall immediately advise WebOpenings in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information, which may come to your attention.
XVI. Injunctive Relief.
Because of the unique nature of the Site and the services offered thereby, you understand and agree that WebOpenings may suffer irreparable injury in the event you fail to comply with any of these Terms and that monetary damages may be inadequate to compensate WebOpenings for such breach. Accordingly, you agree that WebOpenings will, in addition to any other remedies available to it at law or in equity, be entitled to immediate, injunctive relief to enforce these Terms without the necessity of posting a bond.
XVII. Governing Law and Jurisdiction.
The Site is controlled and managed by WebOpenings from its offices in the United States. Those who choose to access the Site from locations outside of the United States are responsible for compliance with applicable local laws. The Site and the Content have been specifically designed for use solely in the United States. You must not use the Site or the Content in countries where it is restricted, prohibited or limited by local laws, regulations, codes or customs. WebOpenings makes no warranty or representation that the Site or the Content is appropriate or available for use in locations outside of the United States. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflicts of laws principles. By using the Site, you submit to the exclusive jurisdiction of and venue in the Federal District Court located in Southern District, State of New York to resolve any dispute arising out of or in connection with these Terms, the Site or the Content, and waive any objections thereto including those of inconvenient forum or similar defenses.
No claim or cause of action based on these Terms, the Site or the Content, or your access or use thereof, may be brought by you more than one (1) year after such claim or cause of action arose.
(a) These Terms shall be binding upon you and WebOpenings and each of your or our successors, assigns, executors and legal representatives, as applicable. You may not assign your rights and obligations under these Terms without the prior written consent of WebOpenings. Any attempt at such assignment without complying with the foregoing shall be deemed null and void and of no effect.
(b) Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect.
(c) WebOpenings will not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond WebOpeningss reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
(d) These terms operate to fullest extent permissible by law. Without limiting any of these Terms, if any provision of these Terms shall be deemed unlawful or unenforceable under any applicable law or jurisdiction will be ineffective to the extent that it unlawful or unenforceable without affecting any other provision of these Terms.
(f) No change or amendment to these Terms by any party other than WebOpenings shall be valid or enforceable against WebOpenings unless agreed to in writing by WebOpenings.
(g) If you have questions or comments, please contact us at:
301 East 22nd Street, 9J
New York, New York 10010
Copyright 2013 WebOpenings, Inc. All rights reserved.
Disclaimer: WebOpenings guarantees that it will generate at least $149 worth of appointment revenue in every month of service, or else you are entitled to a full refund. The guarantee is contingent upon:
A. Having the WebOpenings booking widget on your website within 1 week of signing up for the service.
B. Submitting an customer email database to WebOpenings with at least 2000 valid email addresses to be used for circulating appointment availability.