Website Terms of Use Agreement

 

(Last revised on August 08, 2009)

 

  1. Introduction. Welcome to PapayaHead Inc. TM ("PapayaHead," "Our," or "We"). This Website Terms of Use Agreement ("Agreement") sets forth the legal terms that govern the user's ("You" or "Your") use of Our website, www.papayahead.com ("Website"). Please save a copy of this Agreement for Your personal records. By accessing or using the Website, You are acknowledging that You have read, understood, and agreed, to be bound by this Agreement, and Our Privacy Policy, which is incorporated into this Agreement by this reference, without limitation or qualification.

 

PLEASE READ THIS AGREEMENT CAREFULLY BECAUSE IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, INCLUDING A DISPUTE RESOLUTION CLAUSE AND LIABILITY LIMITATIONS AND EXCLUSIONS.

 

  1. Modification. We reserve the right to unilaterally amend, modify, or change this Agreement, at any time and from time to time, in Our sole discretion, without notice and without Your consent. By continuing to use the Website after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. Therefore, please carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes.

 

  1. Overall Philosophy. We do our best to run Our company by the "Golden Rule". We try to treat You the way We want to be treated. We respect Your privacy. We respect the intellectual property rights of others. We respect the laws that govern our operations and We do our best to meet not only the letter but the intent of those laws. We are trying to provide a website that is useful and relevant to you and we are having a lot of fun doing it. The Website allows users to enter their own recipes, construct meals out of existing recipes, and comment, chat, and rate the recipes and meals shared by other users. Please be aware that with respect to anything you post to the Website, you represent and warrant that You have the right to post the material and that the material and your use of the Website conform to the Code of Conduct and all other provisions of this Agreement. Any material posted to the Website becomes Our property to use in any way we may deem appropriate. We hope you have an enjoyable experience using the Website and join us in treating others with respect.

4.      Eligibility. Anyone who agrees to this Agreement and Our Privacy Policy and continues to abide by the terms therein is eligible to use the Website. If you access the Website or its services from outside the United States, then be aware that pursuant to the terms of this Agreement, United States laws apply to Papayahead and its affiliates, agents, members, managers, employees, consultants, contractors, representatives, successors, and assigns, (collectively, "Papayahead and its Related Parties"), the Website, and all of its services, as opposed to any foreign or regional law that may relate to intellectual property rights, privacy rights, collection of data, or other rights.

 

5.      Registration. In consideration of Your use of the Website, You agree to: (a) provide accurate, current, and complete information about You, as may be prompted by any registration form on the Website ("Registration Data"); (b) maintain the security of Your Website password and identification; (c) maintain and promptly update Your Registration Data, and all other information You provide to PapayaHead; and (d) be fully and solely responsible for all use of Your account and for any action that takes place within Your account. You are not required to complete the Registration Data in order to use the Website, but without completing the Registration Data and creating a profile, You may not be able to make the best use of all of the Website's features.

 

  1. Term. The term of this Agreement begins when You first use the Website, and the term ends 10 years after Your last visit to the Website. At any time and from time to time, in Our sole discretion, and without notice, We may, without any notice or cause, terminate Your right to use the Website and expel You from the Website. This Agreement remains in full force and effect after any termination of Your right to use the Website or any expulsion from the Website.

 

  1. Proprietary Rights in Website Content; Limited License to Access and Use Website. All content that is on the Website or that is available through the Website, including all designs, text, graphics, pictures, video, information, applications, software, music, sound, and other files and their selection and arrangement (collectively, "Website Content"), is the exclusive proprietary property of PapayaHead and its Related Parties or is licensed hereunder to PapayaHead and its users by or other users, as the case may be, with all rights reserved by Papayahead and its Related Parties. No Website Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without Our prior written consent, which may be withheld in Our sole discretion, except with respect to any of Your Provided Content (as defined in Section 8) that You post on the Website in accordance with the terms of this Agreement and Our Privacy Policy.

 

For so long as You are eligible to use the Website and provided that You act in accordance with the terms of this Agreement: (a) You are granted a limited license to access and use the Website solely for Your personal non-commercial use; and (b) You are granted a limited license to access, use, download, or print a copy of any portion of the Website Content to which You have properly gained access solely for Your personal non-commercial use. Except for Your Provided Content, if any, You must not upload or republish any Website Content on any Internet, Intranet, or Extranet site and you must not incorporate any related information in any other database or compilation; and, any other use of the Website Content is strictly prohibited. Such limited license is subject to all terms of this Agreement. We may take any legal action in connection with any violation of this Agreement.

 

Any use of the Website or of the Website Content, other than as may be specifically authorized herein, without the prior written consent of PapayaHead, which may be withheld in Our sole discretion, is strictly prohibited and will automatically and immediately terminate all licenses granted by PapayaHead herein. Such unauthorized use may also violate applicable laws, including copyright and trademark laws and communications statutes and regulations. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to any intellectual property right, whether by estoppel, implication, or otherwise. All licenses granted by PapayaHead herein are revocable at any time, in Our sole discretion, without notice, and with or without cause.

 

  1. Provided Content. You are fully and solely responsible for all content that You upload, post, transmit, or share to the Website ("Provided Content"). "Website Content," as defined in Section 7 of this Agreement, includes all "Provided Content."

 

You may not upload, post, transmit, or share any Provided Content on the Website that You did not create or that You do not have permission to upload, post, transmit, or share. You understand and agree that PapayaHead may, at any time and from time to time, in Our sole discretion, and without notice, review the Website and delete, remove, or restrict access or viewing to any Website Content. You are fully and solely responsible at Your full and sole cost and expense for creating backup copies and replacing any Provided Content that You upload, post, transmit, share to the Website or provide to PapayaHead and its Related Parties in any other way.

 

When You post Provided Content to the Website, You automatically authorize PapayaHead and its Related Parties to make such copies thereof as We may deem, in Our sole discretion, necessary or appropriate. By posting Provided Content to the Website, You automatically grant, and You represent and warrant that You have the right to grant, to PapayaHead and its Related Parties an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide right and license to use, copy, publicly perform, publicly display, sublicense, reformat, translate, excerpt, distribute, modify, prepare derivative works of, or incorporate into other works, any Provided Content for any purpose (commercial, advertising, or otherwise).

 

In addition, please read the following excerpt from the US Copyright Office factsheet regarding copyright registration of recipes:

 

"Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

 

Protection under the copyright law (title 17 of the U.S. Code, section 102) extends only to "original works of authorship" that are fixed in a tangible form (a copy). "Original" means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met."

 

For more information visit the US Copyright Office website at: http://www.copyright.gov

 

  1. Code of Conduct. PapayaHead and its Related Parties are not liable for Your conduct or the conduct of any other user or any third party (collectively, "User"). Nonetheless, in an attempt to make the Website a safer and healthier place, and in addition to the other terms of this Agreement, each User agrees to all of the following specific rules governing their conduct on the Website:

 

    1. User must not upload, post, transmit, share, store, or otherwise make available any content that We may deem, at any time and from time to time, in Our sole discretion, harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, sexually, or otherwise objectionable.
    2. User must not upload, post, transmit, share, store, or otherwise make available: (1) any information, material, or content that infringes on the rights of PapayaHead and its Related Parties or any third party, including any intellectual property right; (2) any third party advertisements, including banner exchange services; (3) any software viruses, Trojan horses, worms, or any other malicious software; or (4) any information or material that may constitute or encourage conduct that is a criminal offense or civil wrong or that otherwise may violate any applicable law or this Agreement.
    3. User must not attempt to circumvent any content filtering techniques that We may employ.
    4. User must not use automated scripts to collect information from or otherwise interact with the Website or its servers.
    5. User must not register for more than one account, register for an account on behalf of any individual other than user, or register for an account on behalf of any third party, including any group or entity.
    6. User must not upload, post, transmit, share, store, or otherwise make available any private information of any third party, including mailing addresses, phone numbers, email addresses, Social Security numbers, or credit card numbers.
    7. User must not solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes.
    8. User must not attempt to use another person's account, service, or system.
    9. User must not impersonate any person or entity or make any false statement regarding User's employment, agency, or affiliation with any person or entity.
    10. User must not stalk, threaten, or harass anyone or infringe or attempt to infringe their privacy.
    11. User must not interfere with or disrupt the Website's servers or networks connected to the Website or any other server.
    12. User must not attempt to gain unauthorized access to other computer systems or networks.
    13. User must not upload, post, transmit, share, or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or other form of solicitation.
    14. User must not upload, post, transmit, share, store, or otherwise make available content that would constitute, encourage, or provide instructions for a criminal offense, that would violate the rights of any party, or that would otherwise create any liability or violate any local, state, national, or international law, regulation, or ethical code.
    15. User must not take any action that could undermine, disrupt, or manipulate the integrity of any user feedback and rating systems on the Website.
    16. User must not operate or participate in any gaming or lottery.
    17. User must not disobey or breach this Agreement or any other applicable instruction or policy published by PapayaHead and its Related Parties.
    18. User must not post, transmit, share, store, or otherwise make available content that, in the sole judgment of PapayaHead, is objectionable or restricts or inhibits any third party from using or enjoying the Website, or that may expose PapayaHead and its Related Parties or anyone else to any harm or liability of any type.

 

The content on the Website may be accessible to children under the age of 18. PapayaHead reserves the right, at any time and from time to time, in Our sole discretion, and without notice, to remove, delete, or restrict access to information that is deemed inappropriate for children under the age of 18. Further, PapayaHead may, at any time and from time to time, in Our Sole discretion, and without notice, refuse to post, transmit, or remove any content uploaded or posted by any user. PapayaHead may, at any time and from time to time, in Our Sole discretion, and without notice review any user's personal profile and amend any typing or spelling error. PapayaHead may, at any time and from time to time, in Our sole discretion, and without notice, restrict or terminate any user's access to the Website, with or without cause.

 

  1. Copyright Policy and Copyright Complaints. We respect the intellectual property rights of others, and We prohibit users from uploading, posting, transmitting, sharing, or otherwise making available any material that violates another party's intellectual property rights. When We receive proper Notification of Alleged Copyright Infringement, as described below, We may promptly remove or disable access to the allegedly infringing material and terminate any or all accounts of repeat infringers in accordance with the Digital Millennium Copyright Act ("DMCA").

 

If You believe that Your own copyrighted work is accessible on the Website or service in violation of Your copyright, You may provide our Designated Agent with a written communication as set forth in the DMCA, 17 U.S.C. Section 512(c)(3), which contains substantially the following information:

1.      Identify in sufficient detail the copyrighted work or intellectual property that You claim has been infringed so that We can locate the material. For example, "The copyrighted work is my content that appears at http://www.mycontentpage.com/item1_jloflks789." If multiple copyrighted works at a single online site are covered by Your Notification, You may provide a representative list of such works at that site.

2.      Identify the URL or other specific location on the Website or service that contains the material that You claim infringes Your copyright described in Item 1 above. You must provide us with reasonably sufficient information to locate the alleged infringing material. For example, "The content at the following URL infringes on my copyright: http://www.anothercontent.com/item2_jklstw123."

3.      Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.

4.      Include a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.

5.      Include a statement by You that the information contained in Your Notice is accurate and that You attest under the penalty of perjury that You are the copyright owner or that You are authorized to act on the copyright owner's behalf.

6.      Include Your name, mailing address, telephone number, and email address.

You may submit Your Notification of Alleged Copyright Infringement by sending a letter to our Designated Agent by mail, or e-mail, as set forth below:


Dean Jenkins, President/CEO

PapayaHead, Inc.

1700 Cooper Point Rd SW Suite A-3

Olympia, WA 98502


E-Mail: copyright@papayahead.com

 

Please note that You could be liable for damages, including court costs and attorneys fees (whether incurred at trial, on appeal, or otherwise) if You materially misrepresent that any content on our Website or any service infringes any copyright. Filing a false form on this page constitutes perjury.

 

On receiving a proper Notification of Alleged Copyright Infringement as described above, We may remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of Your claim. We also may advise the alleged infringer of the DMCA statutory Counter Notification procedure described below, by which the alleged infringer may respond to Your claim and request that We restore this material.

 

If You believe that Your copyrighted material has been removed from the Website or service as a result of any mistake or misidentification, then You may submit a written Counter Notification to our Designated Agent pursuant to 17 U.S.C. Section 512(g)(2) and (3). To be an effective Counter Notification under the DMCA, Your Counter Notification must include substantially the following:

1.      Identification of the material that has been removed or disabled and the location at which the material had appeared before it was removed or disabled.

2.      A statement that You consent to the jurisdiction of the Federal District Court in which Your address is located, or if Your address is outside the United States, for any judicial district in which the service provider may be found.

3.      A statement that You will accept service of process from the party that filed the Notification of Alleged Copyright Infringement or the party's agent.

4.      Your name, mailing address, and telephone number.

5.      A statement under penalty of perjury that You have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification.

6.      Your physical or electronic signature.

You may submit Your Counter Notification by sending a letter to Our Designated Agent by mail, or e-mail as set forth below:


Dean Jenkins, President/CEO

PapayaHead, Inc.

1700 Cooper Point Rd SW Suite A-3

Olympia, WA 98502


E-Mail: copyright@papayahead.com

 

If You send Us a valid written Counter Notification meeting the requirements described above, then We may restore Your removed or disabled material no later than 14 business days from the date on which We received Your Counter Notification, unless our Designated Agent first receives notice from the party filing the original Notification of Alleged Copyright Infringement that informs us that such party has filed a court action to restrain You from engaging in infringing activity related to the material in question.

Please note that if You materially misrepresent that the disabled or removed content was removed by mistake or misidentification, You could be liable for damages, including costs and attorneys fees (whether incurred at trial, on appeal, or otherwise). Filing a false form on this page constitutes perjury.

  1. Repeat Infringer Policy. In accordance with the DMCA and other applicable laws, PapayaHead has adopted a policy of terminating, in appropriate circumstances and in Our sole discretion, at any time and from time to time, and without notice, any limited license to access and use the Website for those users who are deemed to be repeat infringers. PapayaHead may also, in Our sole discretion, at any time and from time to time, and without notice, limit access to the Website or terminate any limited license to access and use the Website of any user who infringes any intellectual property right of others, whether or not there is any repeat infringement.

 

  1. Trademarks. All Website Content and all product names, trademarks, service marks, and logos provided by PapayaHead and its Related Parties on the Website are wholly owned or validly licensed by PapayaHead and its Related Parties. All product names, trademarks, service marks, and logos owned by third parties remain the property of such third parties.

 

  1. Encryption Disclaimer. The Website uses encryption technology to protect information from access by unauthorized third parties. WE DO NOT, HOWEVER, GUARANTEE, REPRESENT, OR WARRANT THAT THE ENCRYPTION TECHNOLOGY WILL OPERATE AS INTENDED OR THAT A THIRD PARTY WILL NOT BE ABLE TO ACCESS SUCH INFORMATION. If You have any concern about sending any information over the Internet, then You should use an alternative means of submission. "Claims" means any and all liabilities, claims, losses, damages, expenses, costs, (including reasonable attorneys' fees and costs, whether incurred at trial, on appeal, or otherwise), debts, fines, charges, or liens, whether direct or indirect, including consequential, exemplary, incidental, special, punitive, lost profits, or otherwise. By sending information over the Internet in connection with Your use of the Website, You agree to indemnify and hold harmless PapayaHead and its Related Parties from all Claims arising out of or relating to any failure of the encryption technology to protect Your information.

 

  1. Privacy Policy. We have confidentiality policies in Our online Privacy Policy, which is fully incorporated herein by this reference. To review, click on the underlined Privacy Policy. By continuing to use the Website, You agree to be bound by Our Privacy Policy and all future amendments, modifications, and changes thereto.

 

  1. Third Party Websites and Content. The Website may contain, or You may be sent through the Website, links to other websites, including advertisements, ("Third Party Websites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third Party Applications, Software, or Content"). Such Third Party Websites and Third Party Applications, Software, or Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by PapayaHead. PapayaHead is not responsible for any Third Party Websites accessed through the Website or for any Third Party Applications, Software, or Content posted on, available through, or installed from the Website, including any content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of, or contained in, the Third Party Websites or the Third Party Applications, Software, or Content. The inclusion of, linking to, or installation of any Third Party Websites or any Third Party Applications, Software, or Content does not imply any approval or endorsement thereof by PapayaHead. If You decide to leave the Website and access the Third Party Websites or to use or install any Third Party Applications, Software, or Content, then You do so at Your sole risk and cost. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites to which You navigate from the Website or included with any application You use or install from the Third Party Websites.

 

  1. Linking to the Website. We hereby grant you a non-exclusive, limited license, revocable at Our discretion, to link to any page on our Website, from any website you own or control, but only if that website is not commercially competitive with PapayaHead and does not criticize or otherwise injure PapayaHead, but only for so long as the website where the link resides, and all other locations to which such website links, comply with all applicable laws and do not in any way violate this Website's Code of Conduct in Section 8. Such a link is not an endorsement of any other website by PapayaHead. PapayaHead expressly reserves all of Our rights and remedies and may, from time to time, and in Our sole discretion, demand that such a link be removed and any such web linking immediately cease. You agree to promptly remove all links to the Website upon such a demand.

 

  1. DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. PAPAYAHEAD AND ITS RELATED PARTIES, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, NONINFRINGEMENT, AND USEFULNESS, WITH RESPECT TO PAPAYAHEAD'S SERVICES, THE WEBSITE, ANY WEBSITE CONTENT, OR ANY INFORMATION CONTAINED ON THE WEBSITE (COLLECTIVELY, "SERVICES").

 

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." YOU RELY ON THE SERVICES FULLY AND SOLELY AT YOUR OWN RISK. WE DO NOT REPRESENT OR WARRANT THAT ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THERE COULD BE DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE SERVICES. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR DOWNLOADING OR USE OF THE SERVICES. ALTHOUGH WE MAY TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO OR THROUGH THE SERVICES, WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES ARE FREE OF SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO ANY OF THE FOREGOING.

 

ALTHOUGH WE MAY ATTEMPT TO WARN YOU OF THE PRESENCE OF POTENTIAL ALLERGENS BASED ON THE INFORMATION YOU PROVIDE TO US, WE DO NOT REPRESENT OR WARRANTY THAT THIS WARNING SYSTEM WILL CATCH EVERY POTENTIAL ALLERGEN. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE INGREDIENTS OF ANY AND ALL RECIPES OR MEALS THAT YOU CHOOSE TO ACCESS ON THE WEBSITE, AND TAKING ANY NECESSARY SAFETY PRECAUTIONS, INCLUDING ELECTING NOT TO CONSUME THE RECIPE OR MEAL. PLEASE CAREFULLY CHECK ALL RECIPES AND MEALS FOR POTENTIAL ALLERGENS. ADDITIONALLY, MANY RECIPE INGREDIENTS ARE AVAILABLE FROM A WIDE VARIETY OF SUPPLIERS AND VENDORS. THESE SUPPLIERS AND VENDORS ROUTINELY CHANGE THIER INGREDIENTS AND FORMULATIONS. IT IS YOUR RESPONSIBILITY TO CHECK THE LABEL OF FOODS BEFORE CONSUMING THEM. PAPAYAHEAD AND ITS RELATED PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE OR HARM WITH RESPECT TO THE SERVICES OR ANY ALLERGIC REACTION THAT MAY RESULT FROM YOUR USE OF THE SERVICES.

 

  1. LIMITED LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT PAPAYAHEAD AND ITS RELATED PARTIES ARE NOT LIABLE FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE, EXPENSE, COST (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, WHETHER INCURRED AT TRIAL, ON APPEAL, OR OTHERWISE), DEBT, FINE, CHARGE, OR LIEN, WHETHER DIRECT OR INDIRECT, INCLUDING CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, LOST PROFITS, OR OTHERWISE, ARISING OUT OF OR RELATING TO: (a) THIS AGREEMENT; (b) YOUR USE OR INABILITY TO USE THE SERVICES; (c) YOUR USE OF PAPAYAHEAD INFORMATION; (d) ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA; OR (e) ANY ACTION OR INACTION OF ANY OTHER USER OR ANY THIRD PARTY. YOU HEREBY WAIVE ANY AND ALL CLAIMS WITH RESPECT TO THE FOREGOING, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY FOR ANY AND ALL CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER CLAIMS ARISING OUT OF OR RELATING TO: (a) THIS AGREEMENT; (b) YOUR USE OR INABILITY TO USE THE SERVICES; (c) YOUR USE OF PAPAYAHEAD INFORMATION; (d) ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA; OR (e) ANY ACTION OR INACTION OF ANY OTHER USER OR ANY THIRD PARTY, IS LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

  1. Indemnification. You agree to indemnify and hold harmless PapayaHead and its Related Parties from all Claims (as defined in Section 12) arising out of or relating to: (a) this Agreement; (b) Your use or inability to use the Services; (c) Your use of PapayaHead information; (d) any unauthorized access or alteration of Your transmission or data; or (e) any action or inaction by any other user or any third party).

 

  1. Choice of Law; Dispute Resolution. This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of Washington, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (a) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (b) each party consents to the jurisdiction of the courts of the State of Washington and agrees that those courts have personal jurisdiction over each party; (c) venue must be in Thurston County; and (d) the parties must submit the dispute to mandatory mediation held in Olympia, Washington. The parties will share equally (50/50) in all costs of the mediation, including the mediator's fees, but each party is fully and solely responsible for its own attorneys' and experts' fees, subject to the prevailing party clause discussed in Section 20(a) above. Every mediation must be completed within 4 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 4-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.

 

  1. Waiver. No waiver of any breach of any provision of this Agreement constitutes a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The terms of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.

 

  1. Severability. If any part of this Agreement is held invalid or unenforceable, that portion must be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions must remain in full force and effect.

 

  1. Remedies Cumulative. All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude resort to another or to any other right or remedy provided by law

 

  1. Final Agreement. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. We reserve the right to unilaterally amend or modify this Agreement at any time and from time to time, in Our sole discretion, and without notice.

 

  1. Representations. Each party ("Promising Party") represents and warrants to the other party that: (a) the Promising Party has the legal power and authority to enter into this Agreement and to undertake and perform all of its duties and obligations hereunder, (b) there is no contract or other legal obligation that prevents the Promising Party from entering into this Agreement or from undertaking or performing all of its duties and obligations hereunder, and (c) this Agreement is the Promising Party's legally binding and fully enforceable agreement.

 

  1. Electronic Communications. When You visit the Website or send emails to PapayaHead, You are communicating with PapayaHead electronically. You thereby consent to receive communications from PapayaHead electronically. We will communicate with You by email or by posting notices on the Website. You agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing.

 

  1. Contract Interpretation. The headings in this Agreement shall not affect the interpretation of this Agreement. "Or" shall not be exclusive in its meaning. "Including" means "including, but not limited to." "Herein," "hereunder," and other similar terms refer to this Agreement as a whole and are not limited to the specific section on paragraph where they appear. Plural terms refer to all members of the relevant class, and singular terms refer to one or more members of the relevant class. All pronouns include the masculine, feminine, and neuter pronoun forms. All schedules and exhibits referred to herein are hereby incorporated by reference.

 

  1. Notices. You may contact PapayaHead by writing or emailing PapayaHead at the address or email listed below:

 

PapayaHead, Inc.

1700 Cooper Point Rd SW Suite A-3

Olympia, WA 98502

 

admin@papayahead.com

 

 

2009 Papayahead, Inc. TM   All Rights Reserved.


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