Terms & Conditions for PowerPact.com
Last Modified February 23, 2010
This web site, located at the URL www.powerpact.com (the “Site”), has been developed, is controlled and maintained by PowerPact, LLC. A division of TouchStorm Holdings Group (“PowerPact,” “we,” “us” or “our”). Unless explicitly stated otherwise, any new features or webpages that augment or enhance the Site in the future shall be considered part of the Site. By using this Site, you agree to be bound by each of the terms and conditions set forth below and any amendments thereto (the “Terms and Conditions”). If you do not agree to these Terms and Conditions, please exit the Site immediately. From time to time, these Terms and Conditions may be changed, expanded or amended, and may include the introduction of additional Terms and Conditions for certain Site features. Any changes to these Terms and Conditions will be made without notice, and be effective immediately upon posting on the Site, so please make sure that you review them on an ongoing basis. The “Last Modified” date at the top of this document will indicate when the latest changes were made to these Terms and Conditions. In addition, when using particular services or features on the Site, you shall be subject to any posted guidelines or rules applicable to such services or features that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into these Terms and Conditions.
Permitted Use & Proprietary Rights
PowerPact encourages you to explore the Site to learn more about who we are and what we do. To assist you in learning more about PowerPact, this Site includes samples of our past work, listings of our current clients and projects, information regarding our business model and marketing perspective and biographies of our professionals.
We reserve the right, but undertake no duty, to review, edit, move or delete any material provided for display or placed on this Site, in our sole discretion.
Linked Web Sites
Client Extranet & Registration
In order to access our FTP extranet, you must be a client or agency partner who has been provided a user name and password. Once you have access, you may be required to accept cookies, to download, install or otherwise enable certain software applications. We reserve all rights to suspend or terminate your account and refuse any use of the Site (or any portion thereof) at any time. You acknowledge and agree that we may send you important information and notices regarding your account and the Site by email, text messaging or other means based on the information you provide to us. You further acknowledge and agree that we shall have no liability associated with or arising from your failure to provide us current contact information, including, but not limited to, your failure to receive critical Site information.
You are responsible for maintaining the confidentiality of the FTP extranet password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify PowerPact of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. PowerPact (and its affiliated companies) cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
In the event you make a submission, including without limitation, any notes, postings, ideas, suggestions, concepts, stories, photos or other material through this Site or otherwise (“Submission”), you agree that PowerPact has a fully paid up, royalty free, worldwide, perpetual limited license to use the Submission in any manner we deem appropriate, and we may use such Submission in any form and manner in any media, whether now known or hereafter devised, and you will not have any claim against us with respect to such use. Further, you agree that we have sole right, title and interest in any and all derivative works that PowerPact, its agents or affiliates create as a result of your Submission.
You acknowledge and agree that PowerPact may create or has created Content on its own that may be similar or identical in theme, idea, plot, format or other respects to your Submission, and you waive any and all claims you may have had, may have, and/or may have in the future, that any such content may be similar to ideas and materials you submit. Any dispute concerning your Submission will be handled in accordance with the “Resolution of Disputes” Section that follows.
Resolution of Disputes
You agree that any dispute in any way arising out of or related to these Terms and Conditions, or any claim by you of any kind that PowerPact or any of its parents, subsidiaries, agents, affiliated entities or employees has used any Submission by you, or that anything done by PowerPact or any of its parents, subsidiaries, agents, affiliated entities or employees infringes your copyright or trademark or any other rights in your Submission, as well as any dispute as to the arbitrability of any such controversy or claim, shall be resolved solely by mandatory arbitration. In this regard, you agree and acknowledge that:
a. Arbitration shall be final and binding on the parties (“Arbitration”), and that judgment thereon may be entered in any court of competent jurisdiction;
b. Any Arbitration pursuant to this agreement shall be conducted in Virginia before a single arbitrator familiar with the advertising industry and pursuant to the American Arbitration Association’s (“AAA”) commercial arbitration rules;
c. You and PowerPact are waiving any respective rights to seek remedies in court, including the right to a jury trial;
d. If it is determined by the arbitrator that PowerPact or any of its parents, subsidiaries, affiliated companies or employees improperly used a Submission, or any part thereof, without your consent, or infringed any of your rights in a Submission, including but not limited to copyright or trademark rights, you agree that the sole remedy that can be awarded in any Arbitration against PowerPact or its parents, subsidiaries, affiliated companies or employees shall be a monetary award in the amount that PowerPact has paid for a similar use of comparable material (or, if PowerPact has not previously used comparable material, an amount equal to a standard fee in the advertising industry for such material), and you expressly waive any right to any other form of relief, including but not limited to injunctive relief, any form of punitive damages or any alternate calculation of damages; and
e. The prevailing party in any Arbitration pursuant to these Terms and Conditions will be entitled to recover its costs and expenses, including reasonable attorneys’ fees and experts’ fees, which may be incurred in connection with such Arbitration.
You agree not to (i) use this Site, the Content, or any products or services included on or available through this Site for any unlawful purpose, (ii) restrict or inhibit any other user from using and enjoying this Site, including by means of disrupting the normal flow of dialogue, causing a screen to “scroll” faster than other users of the Site are able to type, hacking or defacing any portion of the Site, introducing any virus, worm, Trojan Horse, Easter Egg, time bomb, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or otherwise acting in a manner that negatively affects other users’ ability to engage in real time exchanges; (iii) post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication or engage in spamming or flooding; (iv) impersonate any other person or entity, or misrepresent your affiliation with any other person or entity; or (v) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content on the Site.
Infringement and Regulatory Complaints
We will cooperate with any law enforcement authorities and comply with any judicial order requesting or directing us to disclose the identity of anyone uploading, downloading, or posting materials, or otherwise using this Site in violation of any applicable federal, state, or local laws.
We respect the intellectual property of others. If you believe that your work has been copied in any way without your permission, please provide the following information to our Copyright Agent identified below. Please ensure that your notice contains the following:
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner whose work you claim has been infringed;
- A description of the work you claim has been infringed;
- Identification of the work you claim infringes the copyrighted work and a description of where it is located on this Site;
- Your address, telephone number and e-mail address;
- A statement by you that you have a good faith belief that the infringing use is not authorized by the copyright owner, the copyright owner’s agent or by law; and
- A statement by you, 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.
Attention: Legal Department
2909 Polo Parkway
Richmond, Virginia 23113
Disclaimer of Warranties
THIS SITE AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR AVAILABLE THROUGH THIS SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. YOU AGREE THAT YOUR USE OF THIS SITE AND ANY PRODUCT OR SERVICE PURCHASED THROUGH THIS SITE IS AT YOUR SOLE RISK. WE AND OUR PARENTS, SUBSIDIARIES, PARTNERS, VENDORS, AGENTS, AFFILIATES, LICENSORS, SPONSORS, AND ADVERTISERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY: (I) THAT USE OF THIS SITE OR ANY CONTENT OR SERVICES ON OR FROM THE SITE (INCLUDING ANY SOFTWARE) WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, OR ERROR FREE; (II) THAT THIS SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (III) THAT ANY ERRORS ON THIS SITE WILL BE CORRECTED; OR (IV) THAT THE SERVERS ON WHICH THE SITE, CONTENT, AND SERVICES ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL WE, OR OUR PARENTS, SUBSIDIARIES, PARTNERS, VENDORS, AGENTS, AFFILIATES, LICENSORS, SPONSORS, AND ADVERTISERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, REVENUE, OR BUSINESS INTERRUPTION, OR LOSS OF COMPUTER PROGRAMS OR DATA ARISING FROM (I) YOUR USE OF OR INABILITY TO USE THIS SITE, OR (II) CONTENT, PRODUCTS, AND/OR SERVICES INCLUDED ON OR AVAILABLE THROUGH THE SITE. Some jurisdictions do not permit the exclusion of certain warranties or the limitation or exclusion of liability. Therefore, the above disclaimer of warranties and/or limitation of liability may not apply to you in its entirety.
The Terms and Conditions shall be exclusively governed by and construed in accordance with the laws of the State of Virginia within the United States of America without giving effect to any principles of conflicts of law. PowerPact controls and operates the Site from its offices located in the State of Virginia in the United States of America. PowerPact makes no representation that Content contained on the Site is appropriate or available for use in jurisdictions outside the United States, or that the Terms and Conditions comply with the laws of any other country. Visitors who use the Site and reside outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. If any provision of the Terms and Conditions shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.
Attention: Legal Department
2909 Polo Parkway
Richmond, Virginia 23113
These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of these Terms and Conditions is held to be invalid or unenforceable, such provision shall be modified or eliminated to the minimum extent necessary and the remaining provisions shall be enforced. These Terms and Conditions constitute the entire agreement between the parties hereto, and supersede any other agreement, promise, or practice between the parties relating to the subject matter hereto. We reserve the right to terminate your access to and ability to use this Site (or any portion thereof), at any time (with or without notice). No waiver by either party of any right hereunder shall constitute a waiver of this or any other right.