WHAT-HAPPENED.COM USE AGREEMENT
This WHAT-HAPPENED.COM use agreement policy (‘Agreement’) provides important information about your WHAT-HAPPENED.COM subscription, so you should take the time to read and understand it. You may review, save and print any part of this Agreement. We encourage you to print out a copy of this document and refer to it as you use WHAT-HAPPENED.COM.
IF YOU DECIDE TO ACCEPT THIS AGREEMENT, YOU MUST DO SO AS IT IS PRESENTED TO YOU HERE — NO CHANGES OF ANY KIND WILL BE ACCEPTED BY THE COMPANY.
· As used in this Agreement, ‘Company’ means WHDC LLC, PO Box 1582, Nevada City, CA 95959 – 877.884.3948.
· ‘WHAT-HAPPENED.COM’ means the services and features provided by the Company, including the What-Happened.com website, Cellicast software (and other future software) that is loaded/installed on the mobile device, automated uploading of images to the What-Happened.com site, viewing of images and animations, viewing of live images on a mobile device, animations of uploaded images, notification to alert guests to activity, real-time voice messaging, to send a voice message, storage for animations and viewing, text, communications, images, sounds, and all other information and materials you encounter or generate through your account, and any other services provided by the Company and software that is downloaded to your computer system or mobile device (depending on the type of membership that you sign up for).
· ‘Subscriber’ means you, and ‘Subscription’ means your account with the Company.
· This Agreement is for non-commercial use of WHAT-HAPPENED.COM only. Commercial customers (who may generate revenue from use of WHAT-HAPPENED.COM) require a different type of account and a different agreement.
· The Company may change, add, or remove any part of this Agreement, or any part of WHAT-HAPPENED.COM, including the services provided and pricing to its subscribers, at any time. If any changes are made, the Company will post them on the WHAT-HAPPENED.COM site.
IF ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD STOP USING WHAT-HAPPENED.COM. YOUR CONTINUED USE OF WHAT-HAPPENED.COM NOW, OR FOLLOWING THE POSTING OF NOTICE OF THESE CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND OF EACH OF THE CHANGES.
• ABOUT WHAT-HAPPENED.COM
· From time to time the Company may impose reasonable rules and regulations regarding the use of WHAT-HAPPENED.COM.
· Note that availability and performance of WHAT-HAPPENED.COM will vary depending on your location, line quality, wireless provider, wiring, Internet traffic, and other factors beyond the control of the Company. The Company only provides WHAT-HAPPENED.COM and cannot and does not guarantee performance speeds, connection issues, or other attributes not directly provided by the Company in connection with these services.
· The type of your Subscription will govern the amount of data that you can upload and/or download each month and will limit the amount of storage provided for your content. You can find the description of each account type, what it includes, and its costs at the ‘product page’ at www.What-Happened.com.
• USING WHAT-HAPPENED.COM
· To use WHAT-HAPPENED.COM (whether as a subscriber or guest) and establish an account, you must be at least 13 years old – or an older minimum age if mandated by applicable local law. If you are under the required age, you may still use WHAT-HAPPENED.COM (again, subject to applicable local law), but only if the account you are using was created and registered by your parent or legal guardian.
· WHAT-HAPPENED.COM has to be available to your location, and your computer and/or mobile device will have to meet certain minimum requirements. Information about service and equipment requirements can be found on the WHAT-HAPPENED.COM homepage at: www.What-Happened.com.
· The Company will make its best effort to provide WHAT-HAPPENED.COM to you. If the Company determines that it cannot provide WHAT-HAPPENED.COM to you, the Company will refund any money that you have paid. The Company shall have no responsibility whatsoever for any claim arising out of its failure or refusal to provide WHAT-HAPPENED.COM to you.
· Please note that many areas have laws and regulations about taking pictures in public or private areas and regarding the use of such pictures. What-Happened.com encourages its subscribers to respect the personal rights of others.
· The Company charges a fee for your use of WHAT-HAPPENED.COM, based on the type of subscription you choose. As a subscriber, you are agreeing that you will pay all charges, including any applicable taxes, for WHAT-HAPPENED.COM at the prices and in the manner found on the WHAT-HAPPENED.COM site (or by calling 877.884.3948 – 1-877-U-VIEW-IT), and that your use will be on the terms found both on that site and in this Agreement.
· By accepting the terms and conditions of this Agreement and completing the registration process, you become a subscriber to WHAT-HAPPENED.COM. As a subscriber, the Company provides you with a limited, non-exclusive license for no longer than the term of your subscription to use the subscriber-name and password provided to you for your account. Your subscriber-name (or your subscriber name combined with your account number), when confirmed by the Company, is your online identity. Do not reveal your password to anyone else. Your account is at risk if you let someone use it inappropriately.
· You must notify the Company immediately on discovering any unauthorized use of your account.
· The Company has the right to change prices and to introduce new charges for WHAT-HAPPENED.COM at any time. Price changes and the introduction of new charges during your subscription period will apply only to subsequent subscription period(s) and to all new WHAT-HAPPENED.COM users, after the effective date of the change.
· All pricing changes will be posted on the WHAT-HAPPENED.COM site, and that posting shall be considered sufficient notice to you of such changes. You are responsible for reviewing pricing information as posted by the Company so that you have notice of any changes. Your continued use of WHAT-HAPPENED.COM, or your failure to cancel your subscription, after any such changes are posted (or effective) will constitute your acceptance of the prices for subsequent subscription period(s).
· Technical support for WHAT-HAPPENED.COM is limited to WHAT-HAPPENED.COM-provided services, software and unmodified hardware. If, however, you do not purchase a service contract from the Company, technical support will be provided to you on an ‘as available’/‘best effort’ basis with no representation or guarantee from the Company of response time or the correction of your problem.
· What-Happened.com makes it possible to post images hosted on What-Happened.com to other websites. This use is acceptable. However, pages on other websites that display images hosted on WHAT-HAPPENED.COM must provide a link back to the WHAT-HAPPENED.COM home page and reference the source as WHAT-HAPPENED.COM.
• ABOUT YOUR ACCOUNT
· The Company will charge your credit card (using PayPal) or your mobile device carrier account (with third-party billing authority for the Company) for all applicable set-up costs and monthly fees and taxes according to the subscription type you chose. These fees and charges will include the fees for using WHAT-HAPPENED.COM, any related services that you may have used or ordered, and charges by third parties whose materials are included as part of your subscription type.
· WHAT-HAPPENED.COM is a monthly service. All monthly fees, taxes, and any set-up costs will be due in advance at the beginning of each month of your subscription.
· Payment forThe fee(s) for all additional charges will be due at the end of the month the charges are incurred. all additional charges will be due at the end of the month in which such
· charges are incurred.
· Except as provided below, set-up fees are non-refundable and the Company does not make pro-rata refunds for fees paid in advance. Your right to use WHAT-HAPPENED.COM is subject to any limits established by the Company or by the issuer of your credit card.
· If you purchased your subscription to WHAT-HAPPENED.COM through a reseller, the reseller must pay all amounts owing for your account. If the reseller fails to pay any amounts due, whether or not you have paid the reseller, your account will be subject to suspension or cancellation until you or the reseller has paid all amounts due.
· Delinquent accounts may be suspended or canceled at the Company’s sole discretion; however, charges will continue to accrue until the account is canceled. There may be an additional charge to reinstate a suspended account.
· If you exceed storage limits of your Subscription, your account may be inactivated. You can reduce the amount of stored content by deleting some or all of it, or you can purchase additional space to upgrade your account (or purchase an additional account or accounts) to accommodate your extra content.
· You can pay your account in either of two ways: Either cCharges are will be billed to your credit card or debit card, as applicable, each month for your use of WHAT-HAPPENED.COM. This transaction is handled by PayPal. The Company does not take credit card information, and it is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by the Company;. Alternativelyor, you may choosecan have your charges to bebilled through your billed via your mobile operatorcarrier account using SMS “reverse billing” (where available). With this second choice, WHAT-HAPPENED.COM will be included in your mobile phone bill.Your charges will appear on your phone bill.
· The Company may offer, from time-to-time, certain promotions with different terms, activation fees, and monthly charges. It is important that you provide accurate billing information to the Company and that you keep all such information current, complete and accurate.
· In addition to the basic information you provide when you register, the Company may maintain records relating to your use of WHAT-HAPPENED.COM. These records may include, but are not limited to: (i) the original creation date of a service, renewal, or request for service; (ii) IP addresses from which images are sent; (iii) communications (whether in electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between you and the Company; (iv) records of your account, including dates and amounts of payments and refunds; and, (v) usernames and configuration change data on WHAT-HAPPENED.COM servers.
· The Company may make available information you provide or that it otherwise maintains in order to cooperate with law enforcement authorities, including complying with warrants, court orders and subpoenas. In addition, the Company reserves the right to comply with any civil court orders and/or subpoenas. By your acceptance of this Agreement and your use of WHAT-HAPPENED.COM, you authorize the Company to take any such actions.
· The Company is not responsible for charges incurred by you from your mobile device service provider as a result of using WHAT-HAPPENED.COM. Determining whether or not there are any such charges is your responsibility.
· Note again that you are responsible for all charges to your account. All charges will be considered valid and undisputed unless questioned in writing within 30 days of the date the disputed charges are due. No adjustment will be made for any charges that are more than 30 days old. Questions regarding these charges should be directed to our Customer Service Department at 877. 884.3948 or email email@example.com.
• CANCELING YOUR ACCOUNT
· WHAT-HAPPENED.COM is a monthly service. Your subscription will remain active and you will be responsible for paying all fees and taxes charged to your account until you cancel it.
· We do not accept cancellation by telephone or email. To cancel your subscription you will need to do the following –
PayPal cancellation. Simply logon to your PayPal account and cancel your WHAT-HAPPENED.COM subscription. Your cancellation will be effective at the end of the month in which you completed that processof the 30-day period for whichthat theyour subscribesubscription is active.
SMS Reverse Billing cancellation. If WHAT-HAPPENED.COM charges appear on your phone bill, you can send a STOP text message from your phone to the code and service name used when you signed-up. Your cancellation will be effective at the end of the 30-day period for whichthat theyour subscription is active.
Business accounts. We require 30 days notice for cancellation. To process your cancellation request, provide us with (1) written or facsimile request submitted on company letterhead by your ‘billing contact’, (2) your customer or account number, (3) your current phone number, and (4) the reason for canceling your subscription. The cancellation will be effective at the end of the billing period 30 days after your notice of cancellation is received.
· Accounts close at the end of the current billing period. WHAT-HAPPENED.COM will not issue refunds or credits for previous or future service whether used or unused.
· If the Company, in its sole discretion, believes you have violated this Agreement, violated the Acceptable Use Policy Guidelines or if you fail to pay any charges when due, it may terminate this Agreement, your password, your account, or your use of WHAT-HAPPENED.COM. Termination notice will be sent to you by email or U.S. Mail to the address you provided to the Company. If this Agreement is terminated, **** the provisions **** regarding software licensing and ownership, copyright/intellectual property infringement, and confidentiality shall survive such termination.
· If you cancel your subscription, the Company will give you 72 hours to download or otherwise copy any of your images, data and other content residing on WHAT-HAPPENED.COM before removing such content from WHAT-HAPPENED.COM.
· Any ‘guest’ or other non-paying account that is idle for more than 30 days may, in the Company’s sole discretion, be terminated and all of its content (images, messages, etc.) deleted.
· On termination of your account by the Company, it may, in its sole discretion, immediately remove all of your images, animations, data and other content from WHAT-HAPPENED.COM and you shall have no right to copy or download such content; in such case, all this content, including all copyrighted or copyrightable material, shall then become the property of the Company.
· In cases where your account has been cancelled, and you are requesting reactivation, the Company, at its option, may reactivate the same account, but only if the account had been cancelled less than 30 days before the request. After 30 days, you will be required to set up a new account.
• AVAILABILITY OF THE SERVICE
· While the Company makes reasonable efforts to ensure that WHAT-HAPPENED.COM is available at all times, the Company does not guarantee, represent or warrant that WHAT-HAPPENED.COM services will be uninterrupted or error-free, and the Company does not guarantee that users will be able to access or use all the WHAT-HAPPENED.COM features at all times. Subject to any specific license agreements for various WHAT-HAPPENED.COM software features (including third party software), the Company may change, suspend or discontinue any (or all) aspects of WHAT-HAPPENED.COM at any time, including the availability of any WHAT-HAPPENED.COM feature. The Company may also impose limits on the use of or access to certain features or portions of WHAT-HAPPENED.COM, or restrict your access to any part or all of WHAT-HAPPENED.COM, in all cases without notice or liability.
· The Company also does not guarantee or warrant that any images, messages, animations, data or other content you may have in your account at WHAT-HAPPENED.COM will not be subject to inadvertent damage, corruption or destruction. You are responsible for backing up, on your own images, messages, animations, data and other content. Unless otherwise expressly provided in the terms of any service or feature offered in WHAT-HAPPENED.COM, the Company will not be responsible for any archiving or backup of any such information. If any images, messages, animations, data or other content in your account and stored on the WHAT-HAPPENED.COM system is damaged, lost or corrupted in any way, the Company will have no obligation or liability to you except as otherwise expressly set forth in any applicable individual software license agreement for any particular WHAT-HAPPENED.COM feature or service.
• ACCEPTABLE USE POLICY GUIDELINES
· WHAT-HAPPENED.COM users can share their images and benefit from the interactive on-line experience. However, it is important to remember that there are rules and standards that you must abide by when you use WHAT-HAPPENED.COM, whether you are using WHAT-HAPPENED.COM on a guest, visitor, or as a paying subscriber. These rules and standards are described in this Agreement.
· As a WHAT-HAPPENED.COM user, you agree to comply with this Agreement, and you acknowledge that the Company has the right to enforce this Agreement in its sole discretion. This means that if you (or anyone using your WHAT-HAPPENED.COM account) violate the terms of this Agreement, the Company may take any and all appropriate actions. This can range from a simple warning about a violation, the termination of your access privileges for WHAT-HAPPENED.COM, and even legal action – as the Company deems necessary or appropriate.
· The Company is not required to provide notice before terminating your WHAT-HAPPENED.COM access for violating these rules and standards, but it may choose to do so. You are solely responsible for your conduct, and the conduct of anyone using your account, while using WHAT-HAPPENED.COM, including your images, animations, messages and all other content, information or other interactions generated, transmitted or maintained on or through WHAT-HAPPENED.COM.
· The Company will not be responsible or liable in any way for any such on-line distribution or publication. The Company cannot and will not review every image, animation, message or other content which may generated or posted on or through your account (although the Company reserves the right to monitor members' use of WHAT-HAPPENED.COM), and the Company will not be responsible for anything in any of those images, animations, messages or other content.
· The Company reserves the right to delete, move or edit any item that the Company, in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise illegal, inappropriate or unacceptable, including any material the Company believes may subject the Company to any liability or which may cause the Company to lose the services of any supplier, including but not limited to any Internet Service Providers (ISPs) which may provide services to WHAT-HAPPENED.COM users.
· A member's use of WHAT-HAPPENED.COM should conform to the requirements of the law, respect for the rights of other users of WHAT-HAPPENED.COM and third parties, and current standards for communicating on-line. By your use of WHAT-HAPPENED.COM, you agree to use appropriate conduct and language when you using WHAT-HAPPENED.COM. This includes (but is not limited to) following the rules of any ISP, any other on-line services, this Agreement and all applicable laws. The Company reserves the right to terminate your access to WHAT-HAPPENED.COM at any time, with cause or without cause, in the event of any breach of this Agreement by you (or anyone using your account), your infringement of the Company's or WHAT-HAPPENED.COM's or others' intellectual property, or any other circumstances which, in the Company's sole discretion, merit termination. Any such termination may, if the Company elects (and subject to applicable law), be without any refund to you of any fees or amounts. Inappropriate conduct falls into a number of categories. The more commonly understood categories are discussed below, although this list is not exclusive.
• About Prohibited Conduct
· WHAT-HAPPENED.COM may be used only for lawful and proper purposes. The laws and rules that apply in the ‘off-line’ world must be obeyed on-line as well. Posting, transmitting, promoting, using, distributing or storing images or other content that could subject the Company to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards is prohibited. Such things include information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws. If the Company elects to terminate your right to use WHAT-HAPPENED.COM as a result of any illegal or prohibited conduct, the Company may elect, in its sole discretion (subject to applicable law), not to refund any prepaid fees or other amounts to you.
· Some examples of prohibited conduct are:
Posting obscene images or other content (including child pornography).
Planning illegal activity, such as building a bomb or counterfeiting money.
Advertising a lottery, ammunition, firearms, tobacco, alcohol, illegal drugs and drug-related paraphernalia.
Creating and/or submitting any unwanted or unsolicited e-mail to any What-Happened.com user.
Knowingly transmitting any worm, virus or computer code of a destructive nature.
Pretending to be anyone you are not. You may not impersonate or misrepresent yourself as another person (including celebrities), another WHAT-HAPPENED.COM user, a Company employee, or a civic or government leader, and the Company reserves the right to reject or block any WHAT-HAPPENED.COM user name that could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity.
Using false statements to get, or to attempt to get, account information or other private information from other WHAT-HAPPENED.COM or Internet users.
Engaging in copyright infringement or other intellectual property infringement, or disclosing trade secret or confidential information in violation of a confidentiality or non-disclosure agreement.
Modifying, adapting, or altering in any manner any part of What-Happened.com or modifying, adapting, or altering any other website so as to falsely imply that it is associated with What-Happened.com.
Uploading images of others whose privacy has been invaded or without their consent where otherwisesuch consent would be reasonably required or appropriate.
· The Company reserves the right to cooperate with law enforcement authorities, including complying with warrants, court orders and subpoenas. In addition, the Company reserves the right to comply with any civil court orders and/or subpoenas. If the Company decides to investigate or resolve possible misuse involving you or anything you do on WHAT-HAPPENED.COM, the Company is entitled, except to the extent prohibited by applicable law, to disclose any information about you in the Company's possession in connection with your use of WHAT-HAPPENED.COM and anything you do with WHAT-HAPPENED.COM to law enforcement or other government officials, as the Company in its sole discretion believes to be necessary or appropriate. By your acceptance of this Agreement and your use of WHAT-HAPPENED.COM, you authorize the Company to take any such actions.
• About Objectionable Conduct and Content
· It is essential that all images, animations, messages and other content on WHAT-HAPPENED.COM reflect the provisions of this Agreement. The Company reserves the right to remove any of these things if the Company becomes aware of any them that, in the Company's judgment, does not conform to this Agreement. The Company may send you a warning about the violation of this Agreement if your WHAT-HAPPENED.COM account was responsible for putting objectionable content on WHAT-HAPPENED.COM, but it reserves the right not to do so.
· At all times, the Company reserves the right to terminate, with or without notice, the accounts of WHAT-HAPPENED.COM users who violate this Agreement. In such case, you will not be entitled to any refund of any fee you may have paid for WHAT-HAPPENED.COM services (subject to applicable law).
· Some examples of objectionable conduct that violate the WHAT-HAPPENED.COM acceptable use policy are:
Harassing, threatening, or embarrassing another WHAT-HAPPENED.COM or Internet user.
Transmitting, storing or facilitating distribution of images, animations, messages of any other content that is harmful, abusive, violent, racially or ethnically offensive, lewd, vulgar or objectionable.
If you are an adult, requesting personal or other information from a minor (any person under the age of 18 or the age established by local law) who is not personally known to you.
Posting content that defames abuses or threatens physical harm to others or yourself.
· Note that these are only guidelines. The Company reserves the right to make the final determination about whether any content is objectionable or not.
• About Copyright/Intellectual Property Infringement
· Software and other downloads available through WHAT-HAPPENED.COM are owned by the Company and by others, and are protected by copyrights, trademarks, rights of publicity and other intellectual property rights. Any such software/downloads made available to you by WHAT-HAPPENED.COM containing third-party software that has been licensed by its developers to the Company may be used by you for your own personal use, subject to any rights retained by the developers. You must not copy, transmit, modify, distribute, show in public or in private, or create any derivative works from any of this software you find through WHAT-HAPPENED.COM unless you have the legal right to do so.
· Making unauthorized copies of any software/downloads can lead to the termination of your WHAT-HAPPENED.COM access (without any refund of any prepaid fees or other amounts, subject to applicable law) and may even subject you to legal action. In addition, the owner of this software/download may take criminal or civil action against you. If this owner takes legal action against the Company because of your unauthorized use of software/download, you agree (to the extent permitted by applicable law) to hold harmless and indemnify the Company, its subsidiaries, affiliates, related companies, employees, members, agents and suppliers against any liability, claims, or demands, including the costs of the Company hiring attorneys to defend against the action.
· By submitting or posting images on WHAT-HAPPENED.COM, you are representing that you are the owner of such material or have authorization to distribute it.
· The Company claims no intellectual property rights over the content uploaded to What-Happened.com for your personal use. Your profile and content uploaded by you remain yours unless you are using it for commercial purposes.
· That being said, if the Company receives a commercial proposal to license your uploaded content, the Company will immediately notify you of the terms and conditions of the proposal. If you accept this proposal, 50% of all proceeds you receive from the resulting agreement will be paid to the Company within 10 days of your receipt of any such proceeds.
· The Company will remove your images on the cancellation of your account. However, by allowing access of your images to the public or specified e-mail addresses, you agree to allow other individuals users to view and share your images and you therefore agree to allow us to display and store them.
· If you believe that any image in which you claim copyright has been infringed by anyone using WHAT-HAPPENED.COM, please contact the Company and provide the information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. 512). That information is:
A physical or electronic signature of the copyright owner or the person authorized to act on its behalf;
A description of the copyrighted work claimed to have been infringed;
A description of the infringing material and information reasonably sufficient to permit What-Happened.com to locate the material;
Your contact information, including your address, telephone number, and email;
A statement by you that you have 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
A statement that the information in the notification is accurate, and, under the pains and penalties of perjury, that you are authorized to act on behalf of the copyright owner.
Claims can be sent to info@What-Happened.com.
• Violations of System and Network Security
· Violations of system and network security are absolutely prohibited and may result in criminal and/or civil liability. The Company will investigate incidents involving such violations and may involve and will report any suspected criminal activity to and cooperate with law enforcement.
• CONFIDENTIALITY, MONITORING AND INVESTIGATIONS
· You understand and acknowledge that through your use of WHAT-HAPPENED.COM, you may have access to certain information and materials relating to the Company’s business, its customers, software technology and marketing information that the Company considers confidential. You shall not disclose or reveal to any person or entity, any of this information without the express prior written consent of a duly authorized representative of the Company. Also, you shall not use or disclose any of this confidential information for any purpose, at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as this confidential information is a trade secret under applicable law and shall continue for 2 years following termination of this Agreement with respect to any confidential information, which does not rise to the level of a trade secret.
· THE COMPANY HAS NO OBLIGATION TO MONITOR WHAT-HAPPENED.COM. HOWEVER, THE COMPANY DOES RESERVE THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR ALL WHAT-HAPPENED.COM FEATURES AND CONTENT, INCLUDING BUT NOT LIMITED TO YOUR ACCOUNT, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT.
· When the Company becomes aware of possible violations, the Company may initiate an investigation, which may include gathering information from any WHAT-HAPPENED.COM user or account involved, any third party and any complaining party. During the investigation, the Company may suspend or terminate a subscriber’s WHAT-HAPPENED.COM account(s) involved and/or remove content involved from WHAT-HAPPENED.COM. If the Company believes, in its sole discretion, that a violation of this Agreement has occurred, it may take responsive action, including but not limited to permanent removal of illegal or inappropriate content from the WHAT-HAPPENED.COM, warnings to the WHAT-HAPPENED.COM user(s), and the suspension or termination of the account or accounts responsible. If, as a result of any such investigation, the Company believes that any criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all appropriate law enforcement authorities.
· BY BECOMING A WHAT-HAPPENED.COM USER, YOU AGREE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST THE COMPANY, AND TO INDEMNIFY AND HOLD THE COMPANY HARMLESS WITH RESPECT TO ANY CLAIMS, RELATING TO ANY ACTION TAKEN BY THE COMPANY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.
· THIS MEANS THAT YOU CANNOT SUE THE COMPANY OR RECOVER ANY DAMAGES WHATSOEVER FROM THE COMPANY AS A RESULT OF ITS DECISION TO REMOVE MATERIAL FROM THE WHAT-HAPPENED.COM SYSTEM, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR WHAT-HAPPENED.COM ACCOUNT, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF THE COMPANY’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
• SOFTWARE LICENSES AND OWNERSHIP
· If you access WHAT-HAPPENED.COM through downloaded software (‘Software’), then these provisions relating to software licenses apply to you. Nothing in these provisions, however, supersedes any terms of any end-user license for software provided with your mobile device or computer or any separate software application provided to you to use with WHAT-HAPPENED.COM.
· The Company provides you with a limited license to use the Software providing access to WHAT-HAPPENED.COM, which you agree to use in accordance with these rules. You may not sublicense, or charge others to use or access, this software. The Company will occasionally provide upgrades to improve WHAT-HAPPENED.COM.
· The Company grants to you a non-exclusive, non-transferable limited license to use the Software designed to provide access to and use of WHAT-HAPPENED.COM for the sole purpose of connecting you to WHAT-HAPPENED.COM. This license is subject to the restriction that, except where expressly permitted by law, you may not translate, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works from the Software, or use it to communicate with or connect to any non-WHAT-HAPPENED.COM server.
· You may not modify the Software or use it in any way not expressly authorized by this Agreement. You understand that the Company's introduction of various technologies may not be consistent across all platforms or for all mobile devices and that the performance and some WHAT-HAPPENED.COM features may vary depending on your equipment.
· The Software is confidential and proprietary information of WHAT-HAPPENED.COM and its licensors and contains trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with WHAT-HAPPENED.COM and its licensors.
· If the Company performs any customizations or modifications to WHAT-HAPPENED.COM, all rights and interests to such customizations or modifications shall be the sole property of the Company.
· You may not download, use, or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Software, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Contractor/manufacturer is WHDC LLC, PO BOX 1582, Nevada City, CA 95959.
· You are not permitted to cause the Software to be downloaded by others, whether they are valid WHAT-HAPPENED.COM account holders or not. This includes hosting the Software yourself, making it available to others to host, and providing mobile device text message email addresses that do not belong to you.
· The Company owns all database, compilation, collective and similar rights, title and interests worldwide in WHAT-HAPPENED.COM and all related software, data and other proprietary information databases, and all information and derivative works generated from those databases.
· The Company does not claim any rights in customer-generated content when that content used for personal, non-commercial purposes.
· The Company and you will jointly own the rights to customer-generated content accessible from WHAT-HAPPENED.COM servers when such content is used for commercial purposes. You agree to notify the Company of all commercial licensing/use requests you receive, and the Company agrees to notify you of any such requests. Notification required by this paragraph will be made within 48 hours of receipt of any request.
· Any fee (e.g., licensing/use fees) realized from a commercial use (that is, use in any way that you receive compensation of any kind for) of your images, animations or other content will be divided equally between you and the Company. The amount of any such fee will be subject to the Company’s approval, which will not be unreasonably withheld. If industry-standard fees apply to commercial use of content, then approval not such approval is required. You agree to notify the Company of any commercial use of your content and the amount you will receive from it within 2 days of the date you first become aware of such use.
• AUTHORIZATION TO REMOVE CONTENT
· The Company reserves the right to disable your access to WHAT-HAPPENED.COM and to remove any content you may have stored on WHAT-HAPPENED.COM (including images, messages, animations, data and any other content) if, (1) at the end of any trial period, if you do not elect to become a paid WHAT-HAPPENED.COM subscriber, (2) on expiration of your subscription period – if you do not renew, (3) on cancellation of your membership, (4) if your credit card is declined at any time or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company, and (5) if you fail to make any payment to the Company when due. The Company will notify you via e-mail or US Mail at the address you provided that your access to WHAT-HAPPENED.COM will be deactivated and that your content at the time of deactivation will be deleted.
• DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY
· YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, WHAT-HAPPENED.COM IS AT YOUR SOLE RISK. WHAT-HAPPENED.COM IS PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
· THE COMPANY DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH WHAT-HAPPENED.COM WILL BE FREE OF VIRUSES, ‘WORMS’, ‘TROJAN HORSES’, OR OTHER HARMFUL COMPONENTS. THE COMPANY’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICES PROVIDED BY WHAT-HAPPENED.COM SHALL BE CANCELLATION OF YOUR ACCOUNT.
· IN NO CASE SHALL THE COMPANY, ITS MEMBERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF WHAT-HAPPENED.COM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR WHAT-HAPPENED.COM USE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
· EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED THROUGH WHAT-HAPPENED.COM AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES THROUGH WHAT-HAPPENED.COM. YOU HEREBY RELEASE THE COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS.
· The Company may give notice to any WHAT-HAPPENED.COM user by sending an e-mail message to you or by sending a letter via postal mail to the contact address listed in the your WHAT-HAPPENED.COM account.
· WHAT-HAPPENED.COM users may contact the Company by e-mail at info@What-Happened.com.
• U.S. EXPORT CONTROLS
· You agree to abide by U.S. and other applicable export control laws and not to transfer from the U.S., by electronic transmission or otherwise, any Content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You also agree not to upload to your WHAT-HAPPENED.COM account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall last beyond the termination of this Agreement.
• LEGAL PRINCIPLES
· This Agreement represents your entire agreement with the Company with respect to WHAT-HAPPENED.COM. You agree that this Agreement is not intended to give and does not give any rights or remedies to any person other than you, as a WHAT-HAPPENED.COM user, and the Company. If any part of this Agreement is found to be invalid or unenforceable, that portion shall be construed to reflect, as nearly as possible, the original intentions of the parties, and the rest of this Agreement will remain in full force and effect.
· Your conduct and use of WHAT-HAPPENED.COM is subject to all local, state, United States, and international laws.
· You understand and specifically agree that exclusive jurisdiction for any claim or dispute with the Company regarding WHAT-HAPPENED.COM or relating in any way to your account or your use of WHAT-HAPPENED.COM will be in the courts of the State of California, and that it will be governed by California law. Venue for any such action shall be in Nevada County, unless otherwise agreed by the parties. You also agree and expressly consent to the exercise of personal jurisdiction in the California courts in connection with any such dispute, including any claim involving the Company or its employees, contractors, officers, directors, telecommunication providers and content providers with respect to WHAT-HAPPENED.COM.
· The failure of the Company to require or enforce your performance of any part of this Agreement will not affect its right to require such performance at a later time, nor shall it be construed as a waiver of the Company’s right to enforce the provision itself.
· You may not assign your rights or delegate any of your responsibilities under this Agreement without the prior written consent of the Company, and any attempted assignment or delegation without such consent shall be void and of no force or effect.
· You agree to indemnify and hold the Company, its members and employees harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that the Company may incur as a result of your breach, or that of anyone you allow to use your account, of any term or condition of this Agreement.
· Any disagreement arising out of this Agreement or from the breach of any of its terms shall be submitted to binding arbitration. Any arbitration shall be held in Sacramento, California, and shall comply with and be governed by the provisions of the California Arbitration Act. Any arbitrator selected shall have expertise in Internet services. Judgment on the award of the arbitrator may be entered into any court having jurisdiction over the matter.
· Nothing in this Agreement shall be construed or interpreted to create an agency, partnership, or any other form of joint enterprise between you and the Company.
· Under California Civil Code Section 1789.3, California WHAT-HAPPENED.COM subscribers receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254. You can also access the California Department of Consumer Affairs through its web site, www.dca.ca.gov.
· FOR WHAT-HAPPENED.COM USERS OUTSIDE THE UNITED STATES: THE COMPANY PROVIDES THE WHAT-HAPPENED.COM SERVICE. THE PERSONAL INFORMATION THAT YOU GIVE WHAT-HAPPENED.COM WILL BE USED TO ESTABLISH YOUR ACCOUNT AND WILL BE TRANSFERRED TO AND MAINTAINED IN WHAT-HAPPENED.COM RECORDS IN THE UNITED STATES.
· IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE WHAT-HAPPENED.COM SERVICE.