PMS Clan Inc. ("PMS Clan" or "we") operates pmsclan.com, which is a social networking and gaming clan site that allows Members to create unique personal profiles online in order to find and communicate with clan mates, friends, and other like minded gamers. The services offered by PMS Clan include any pmsclan-branded URL (the "PMS Clan Website") and other features (for example, music and video embedded players), and any other features, content, or applications offered from time to time by PMS Clan in connection with PMS Clan's business (collectively, the "PMS Clan Services"). The PMS Clan Services are hosted in the United States.
This Agreement includes PMS Clan's policy for acceptable use of the PMS Clan Services and Content (as defined in Section 6.1 below) posted on or through the PMS Clan Services and your rights, obligations and restrictions regarding your use of the PMS Clan Services and Content posted on or through the PMS Clan Services. In order to participate in certain PMS Clan Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions from PMS Clan. Unless otherwise provided by the additional terms and conditions applicable to the PMS Clan Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement. For a copy of this agreement, please Contact Us
PMS Clan may modify this Agreement from time to time and such modification shall be effective upon posting by PMS Clan on the PMS Clan Website. Your continued use of the PMS Clan Services after PMS Clan posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the PMS Clan Services and that you provide to other Users. Your PMS Clan profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other PMS Clan Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and PMS Clan assumes no responsibility or liability for this material. If you become aware of misuse of the PMS Clan Services by any person, please click on the Contact Us or the "Report Abuse" link at the bottom of the PMS Clan Website pages.
PMS Clan reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the PMS Clan Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. PMS Clan expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the PMS Clan Services if PMS Clan determines, in its sole discretion, that you have violated this Agreement or pose a threat to PMS Clan and/or its Users.
1. Eligibility. Use of the PMS Clan Services and registration to be a Member for the PMS Clan Services ("Membership") is void where prohibited. By using the PMS Clan Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the PMS Clan Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the PMS Clan Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. PMS Clan may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, this Agreement will remain in effect, including Sections 5-17.
3. Fees. You acknowledge that PMS Clan reserves the right to charge for any portion of the PMS Clan Services and to change its fees (if any) from time to time in its discretion. If PMS Clan terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify PMS Clan immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Use by Members. The PMS Clan Services are for the personal use of Members and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by PMS Clan. PMS Clan reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the PMS Clan Services, including collecting usernames, user id numbers, and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the PMS Clan Website, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. PMS Clan reserves the right to take appropriate legal action for any illegal or unauthorized use of the PMS Clan Services.
6. Proprietary Rights in Content on PMS Clan.
6.1 PMS Clan does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the PMS Clan Services. After posting your Content to the PMS Clan Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the PMS Clan Services, you hereby grant to PMS Clan a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the PMS Clan Services, including without limitation distributing part or all of the PMS Clan Website in any media formats and through any media channels, except Content marked "private" will not be distributed outside the PMS Clan Website. This limited license does not grant PMS Clan the right to sell or otherwise distribute your Content outside of the PMS Clan Services. After you remove your Content from the PMS Clan Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the PMS Clan Website you change the Content's privacy setting to "private" we will cease distribution of such "private" Content outside the PMS Clan Website as soon as practicable after you make the change.
6.2 The license you grant to PMS Clan is non-exclusive (meaning you are free to license your Content to anyone else in addition to PMS Clan), fully-paid and royalty-free (meaning that PMS Clan is not required to pay you for the use on the PMS Clan Services of the Content that you post), sublicensable (so that PMS Clan is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the PMS Clan Services), and worldwide (because the Internet and the PMS Clan Services are global in reach).
6.3 You represent and warrant that: (i) you own the Content posted by you on or through the PMS Clan Services or otherwise have the right to grant the license set forth in this Section 6, and (ii) the posting of your Content on or through the PMS Clan Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you on or through the PMS Clan Services.
6.4 The PMS Clan Services contain Content of PMS Clan ("PMS Clan Content"). PMS Clan Content is protected by copyright, trademark, patent, trade secret and other laws, and PMS Clan owns and retains all rights in the PMS Clan Content and the PMS Clan Services. PMS Clan hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the PMS Clan Content (excluding any software code) solely for your personal use in connection with viewing the PMS Clan Website and using the PMS Clan Services.
6.5 The PMS Clan Services contain Content of Users and other PMS Clan licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the PMS Clan Services.
6.6 PMS Clan performs technical functions necessary to offer the PMS Clan Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the PMS Clan Services.
7. Content Posted.
7.1 PMS Clan may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of PMS Clan violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. PMS Clan assumes no responsibility for monitoring the PMS Clan Services for inappropriate Content or conduct. If at any time PMS Clan chooses, in its sole discretion, to monitor the PMS Clan Services, PMS Clan nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
7.2 You are solely responsible for the Content that you post on or through any of the PMS Clan Services, and any material or information that you transmit to other Members and for your interactions with other Users.
8. Content/Activity Prohibited.
The following are examples of the kind of Content that is illegal or prohibited to post on or through the PMS Clan Services. PMS Clan reserves the right to investigate and take appropriate legal action against anyone who, in PMS Clan’s sole discretion, violates this provision, including without limitation, removing the offending Content from the PMS Clan Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of PMS Clan:
8.1 is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; 8.2 harasses or advocates harassment of another person; 8.3 exploits people in a sexual or violent manner; 8.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website; 8.5 solicits personal information from anyone under 18; 8.6 publicly posts information that poses or creates a privacy or security risk to any person; 8.7 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; 8.8 constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files; 8.9 involves the transmission of "junk mail", "chain letters", or unsolicited mass mailing, instant messaging, "spimming", or "spamming"; 8.10 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); 8.11 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; 8.12 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; 8.13 involves commercial activities and/or sales without prior written consent from PMS Clan such as contests, sweepstakes, barter, advertising, or pyramid schemes; 8.14 includes a photograph or video of another person that you have posted without that person's consent; 8.15 for band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile; or8.16 violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited on the PMS Clan Website and through your use of the PMS Clan Services. PMS Clan reserves the right to investigate and take appropriate legal action against anyone who, in PMS Clan's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
8.17 criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets; 8.18 advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the PMS Clan Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, PMS Clan reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which PMS Clan deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the PMS Clan Services, you acknowledge that you will have caused substantial harm to PMS Clan, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay PMS Clan $50 for each such unsolicited email or other unauthorized commercial communication you send through the PMS Clan Services; 8.19 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the PMS Clan Services; 8.20 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network; 8.21 covering or obscuring the banner advertisements on your personal profile page, or any PMS Clan page via HTML/CSS or any other means; 8.22 any automated use of the system, such as, but not limited to, using scripts to add friends or send comments or messages; 8.23 interfering with, disrupting, or creating an undue burden on the PMS Clan Services or the networks or services connected to the PMS Clan Services; 8.24 impersonating or attempting to impersonate another Member, person or entity; 8.25 for band, comedy, filmmaker and other profiles containing a PMS Clan player, copying the code for your PMS Clan Player and embedding it (or directing others to embed it) anywhere other than your band profile on PMS Clan; 8.26 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account; 8.27 selling or otherwise transferring your profile; 8.28 using any information obtained from the PMS Clan Services in order to harass, abuse, or harm another person or entity, or attempting to do the same; 8.29 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the PMS Clan Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose as one of your "Top 8" friends, or sending private messages with a commercial purpose; or 8.30 using the PMS Clan Services in a manner inconsistent with any and all applicable laws and regulations.
9. Protecting Copyrights and Other Intellectual Property.
PMS Clan respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. PMS Clan has the right to terminate the Membership of infringers. If you believe your work has been copied and posted on or through the PMS Clan Services in a way that constitutes copyright infringement, please send PMS Clan's Copyright Agent a notification of claimed infringement with all of the following information:
(a) identification of the
copyrighted work claimed to have been infringed, or, if multiple copyrighted
works are covered by a single notification, a representative list of such
(b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the PMS Clan Services (providing the URL(s) of the claimed infringing material satisfies this requirement);
(c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
(d) 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; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or a uthorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. PMS Clan's Copyright Agent for notification of claimed infringement can be reached as follows: PMS Clan P.O Box San Antonio TX 78208.
10. Member Disputes. You are solely responsible for your interactions with other PMS Clan Members. PMS Clan reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.
12. Disclaimers. PMS Clan is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted on or through the PMS Clan Services, whether caused by Users of the PMS Clan Services or by any of the equipment or programming associated with or utilized in the PMS Clan Services and such User Content does not necessarily reflect the opinions or policies of PMS Clan. Profiles and third party applications created and posted by Members on the PMS Clan Website may contain links to other websites. PMS Clan is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by PMS Clan. Inclusion of any linked website on the PMS Clan Services does not imply approval or endorsement of the linked website by PMS Clan. When you access these third party sites, you do so at your own risk. PMS Clan takes no responsibility for third party advertisements or third party applications that are posted on or through the PMS Clan Services, nor does it take any responsibility for the goods or services provided by its advertisers. PMS Clan is not responsible for the conduct, whether online or offline, of any User of the PMS Clan Services. PMS Clan assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communicatiions. PMS Clan is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the PMS Clan Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the PMS Clan Services. Under no circumstances shall PMS Clan be responsible for any loss or damage, including personal injury or death, resulting from use of the PMS Clan Services, attendance at a PMS Clan event, from any User Content posted on or through the PMS Clan Services, or from the conduct of any Users of the PMS Clan Services, whether online or offline. The PMS Clan Services are provided "AS-IS" and as available and PMS Clan expressly disclaims any warranty of fitness for a particular purpose or non-infringement. PMS Clan cannot guarantee and does not promise any specific results from use of the PMS Clan Services.
13. Limitation on Liability. IN NO EVENT SHALL PMS CLAN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE PMS CLAN SERVICES, EVEN IF PMS CLAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PMS CLAN'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO PMS CLAN FOR THE PMS CLAN SERVICES DURING THE TERM OF MEMBERSHIP.
14. U.S. Export Controls. Software available in connection with the PMS Clan Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the PMS Clan Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
15. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. You and PMS Clan agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of the Agreement or the PMS Clan Services.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
16. Indemnity. You agree to indemnify and hold PMS Clan, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the PMS Clan Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the PMS Clan Services causes PMS Clan to be liable to another.
17. Other. This Agreement is accepted upon your use of the PMS Clan Website or any of the PMS Clan Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and PMS Clan regarding the use of the PMS Clan Services. The failure of PMS Clan to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. PMS Clan is a trademark of PMS Clan, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.