I was over on corporate blogging expert Debbie Weil’s blog today where she had a light-hearted post on ElfYourself, a site which serves but one simple purpose: upload a photo and turn yourself into an Elf.
With budding holiday spirit, I was about to give it a try, until I started browsing the terms of service. I scrolled, and scrolled, and scrolled before realizing that they have 7,261 words in their terms of service (that’s 16 pages when pasted into Word) — all for a site to support the weighty task of turning your picture into an Elf.
By comparison, the Mark Logic master software license and services agreement, which is used for million-dollar business to business enterprise software contracts, comes in at 6,052 words.
I wonder about the legal future of the web when people are increasingly clicking on totally unread and seemingly out-of-control service agreements.
Before diving into the full agreement, here a few of my favorite terms:
- The preamble says you may need to create a JibJab account to use ElfYourself and ergo you are subject also to JibJabs terms of service, which weigh in at 4,538 words, bringing the grand total up to 11,799 words.
- Section 4: You are solely responsible for your interactions with other users of the Elf Site. [A weighty responsibility, indeed.]
- Section 4: We reserve the right, but will have no obligation, to monitor interactions between users and take any action in good faith to restrict access to or the availability of any material that Operators or another user may consider to be obscene, lewd, defamatory, lascivious, filthy, offensive, violent, harassing or otherwise objectionable in the sole discretion of the Operators. [I’ve always wondered what the difference is between obscene, lewd, and lascivious.]
- Section 9: You may only link to the applicable Elf Site’s home page unless we have provided prior, written consent to link to other pages [Is my linking to the terms of service without written consent a breach of contract? Seemingly yes, but remember, I didn’t agree to the terms. Since there’s no agreement, there’s no breach, but sadly I’ll never get to ElfMyself.]
- Section 14: You agree to: immediately notify Operators of any unauthorized use of your username and password or any other breach of security and log off from account at the end of each session. [My teenager (>14 years old required per the terms) forgot to log off from ElfYourself and now he’s going to do hard time in the big house.]
- Section 15.6.ii: the User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening, (ii) contain sexually explicit content that is pornographic, obscene, … [They seem awfully worried about racy Elf photos. Given that, I’m wondering if there isn’t a revenue opportunity for creating a site, say BadElf.com, that takes all the material that’s banned on ElfYourself?]
- Section 15.6.x: [will not] provide instructional information about illegal activities such as making or buying illegal weapons. [This one’s hard to believe. I guess it’s never occurred to me that buried in an ElfYourself photograph are the instructions for making a dirty bomb.]
- Section 19: Elf Site Performance. You acknowledge and agree that the operation of the Elf Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Operators will not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Operators service. [I suppose if Facebook, Twitter, Europeana, and eBay can crash, then it’s reasonable to assume momentary outages on ElfYourself. Just please not on December 24th!]
- Section 22: IN NO EVENT WILL OPERATORS’ TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED TWENTY DOLLARS ($20). [A seeming pittance consider the possibility of a lost or mangled Elf photo. Think of the lost memories. Think of the pain and suffering.]
For your amusement (and it is fun to read), here are the complete ElfYourself terms of service.
ElfYourself Terms of Service
Last Updated: November 11, 2008
IMPORTANT! PLEASE READ THESE ELFYOURSELF.COM TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE ELF SITE (DEFINED BELOW) AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. This Agreement only applies to http://www.elfyourself.com and the services, features and content available on http://www.elfyourself.com (collectively, the “Elf Site”) and does not apply to any other web site or any offline activities by OfficeMax Incorporated (OfficeMax) or JibJab Media Inc. (“JibJab”) (unless specifically stated). The Elf Site is brought to you by OfficeMax and hosted by JibJab. OfficeMax and JibJab are collectively referred to in this Agreement as “Operators,” “we,” “us” or “our”.
You agree to this Agreement by accessing or using the Elf Site, registering for services offered on the Elf Site, or by accepting, uploading, submitting or downloading any information or content from or to the Elf Site. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THIS AGREEMENT, DO NOT USE THE ELF SITE.
1. OWNERSHIP & LICENSE OF ELF SITE MATERIALS:
Unless otherwise explicitly specified, you agree that all Content (defined below) is, as between you and the Operators, owned or licensed by the Operators. “Content” includes, without limitation: audio; visual; audiovisual; text; and other elements and materials; graphics; layout; instructions, images; designs; advertising copy; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Elf Site; the compilation, assembly and arrangement of the Elf Site; and all other materials related to the Elf Site in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise. You agree that your right to use the Elf Site and Content, as set forth in this Agreement, is subject to using it for personal, non-commercial use only and that such use will not in any way transfer or convey any ownership rights or other proprietary interests therein to you.
Subject to your strict compliance with this Agreement and except as otherwise expressly permitted by this Agreement or Operators, Operators grant you a limited, personal, non-exclusive, non-commercial, revocable, non
This Agreement will remain in full force and effect while you use the Elf Site or are a registered user of the Elf Site. We may terminate your access to the Elf Site at any time, for any reason, effective immediately upon sending notice to you via the information you provide in your registration or such other information as you may subsequently provide to us. If we terminate your membership due to a breach of this Agreement, you will not be entitled to the refund of any unused portion of subscription fees (if any). If your access to the Elf Site is terminated, or upon demand from Operators, all rights granted to you under this Agreement will cease immediately, and you agree that you will: immediately discontinue use of the Elf Sites; destroy all materials obtained from the Elf Site and all related documentation; and if applicable, pay any amounts owed to Operators in full within thirty (30) days from the date of such termination and continue to pay any other amounts owed under this Agreement. Even after your account with the Elf Site is terminated, this Agreement will remain in full force and effect, as the terms hereof are not conditioned upon membership. You acknowledge that Operators reserve the right to charge for any or all of the Elf Site and have the right to terminate your account should you breach this Agreement or fail to pay for any fee-based services, as required.
Participation on the Elf Site is void where prohibited. By registering on the Elf Site, you represent and warrant that all registration information submitted is truthful and accurate and you agree to maintain the accuracy of such information. By participating on the Elf Site, you represent and warrant that you are fourteen (14) years of age or older and that your use of the Elf Site will not violate any applicable law or regulation. Users profile may be deleted without warning, if it is found that a user is misrepresenting your age or any other membership data. Membership is solely for personal use, and you will not authorize others to use your account, including profile or email address.
4. USER CONDUCT:
You agree to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to: (a) violate any applicable law or regulation, (b) submit any materials that conflict with any of your representations and warranties set forth in this Agreement, (c) infringe, misappropriate or violate the rights of any third party, including without limitation, intellectual property, privacy, publicity and/or contractual rights, (d) use the content and information available through the Elf Site for any unauthorized purpose, (e) interfere with or damage the Elf Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, (f) use the Elf Site to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others, voice or sound recordings of persons other than yourself, personal contact information or account numbers, or any defamatory materials of any kind, except where you have obtained express permission from such other person or entity in connection with any of the foregoing, or (g) use the Elf Site in connection with the distribution of unsolicited commercial e-mail (“Spam”) or advertisements, (h) “stalk” or harass any other user of the Elf Site,, (i) collect or store any information about any other user other than in the course of the permitted use of the Elf Site, (j) use the Elf Site for any commercial purpose whatsoever (including, without limitation, to advertise, market, promote, sell or otherwise exploit any product or service), (k) sell or otherwise transfer any user information (e.g., user profiles) or other user’s User Materials); or (l) assist any third party in doing any of the foregoing.
Operators may terminate any users’ access to the Elf Site who are violators of the foregoing, including, without limitation, those who are infringers of third-party intellectual property rights, and may prohibit them from creating new accounts on the Elf Site.
You are solely responsible for your interactions with other users of the Elf Site. You are solely responsible for all content (including, without limitation, User Materials) uploaded to, published or displayed through your account or otherwise on the Elf Site, including any email messages. Operators will not be responsible for any damage or harm resulting from your interactions with other users. We reserve the right, but will have no obligation, to monitor interactions between users and take any action in good faith to restrict access to or the availability of any material that Operators or another user may consider to be obscene, lewd, defamatory, lascivious, filthy, offensive, violent, harassing or otherwise objectionable in the sole discretion of the Operators.
In addition to the foregoing, the User Materials you submit MUST NOT include nudity, violence, or offensive subject matter.
5. OWNERSHIP OF USER MATERIALS:
You will at all times retain all right, title and interest in and to the User Materials you provide under this Agreement (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to Operators under this Agreement. You are free to grant similar rights to others during and after the term of this Agreement. For the avoidance of doubt, when you submit User Materials to the Elf Si
te, you acknowledge that third parties may use the User Materials as described in this Agreement.
6. USER LICENSE:
As used in this Agreement, the term “User Materials” means your content, photographs, voice recordings, videos, audio, comments, written work, name(s), trademarks, trade names, likenesses, biographical materials, artwork, liner notes, and other graphical or textual materials that you upload, submit or otherwise provide to Operators via the Elf Site, and any and all computer-generated images or other artwork or images that you submit to Operators via the Elf Site.
Unless otherwise agreed between you and Operators, you hereby grant to Operators a worldwide, royalty-free, non-exclusive license to do the following things in perpetuity:
1. to prepare and encode User Materials, or any portion thereof for electronic, digital and/or other transmission, manipulation and exhibition in any format and by any means now known or hereafter devised;
2. to display, copy, reproduce, create derivative works of, edit, alter, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of the User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to Operators under this Agreement include the rights to make User Materials available on the Elf Site, third-party websites and electronic devices);
3. to make embed codes to which your User Materials link available;
4. to modify, adapt, change or otherwise alter and create derivative works of the User Materials and use the User Materials; and
5. to license and/or sublicense to any third party any of the foregoing rights in the User Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.
You hereby disclaim any and all right, title, or interest in any and all material with which User Materials may be combined or into which all or any portion of User Materials may be incorporated.
You acknowledge and agree that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all content, elements and materials created by or for Operators incorporating all or any portion of the User Materials will be exclusively owned and controlled, as between you and Operators, by Operators. You represent and warrant that by submitting User Materials to the Elf Site that the User Material is wholly- owned and/or controlled by you.
7. NAME AND LIKENESS:
You hereby grant to Operators:
1. a perpetual, worldwide, royalty-free, non-exclusive license to use: (i) your name(s), voice recording, photograph and/or likeness(es) and biographical materials; and (ii) any other individual’s name, voice recording, photograph and/or likeness and biographical materials, where such other individual appears in the User Materials, in connection with the distribution, exploitation, promotion, marketing and advertising of the User Materials.
2. You also agree not to assert any privacy, publicity, moral or similar rights (and to the extent any other person(s) whose name(s), voice recordings, photographs and/or likeness(es) and/or performances that are embodied in the User Materials, you represent and warrant that you have obtained all necessary consents from such third parties consistent with the full scope of rights granted to Operators pursuant to this Agreement, and you agree that such persons will not assert any intellectual property, privacy, publicity, contractual, moral or similar rights, or make any claims that any User Materials are objectionable or otherwise defamatory).
8. THIRD PARTY LINKS AND CONTENT:
The Elf Site may contain content from parties other than JibJab and OfficeMax (“Third Party Content”), either through services we offer or through links to third party web sites other than JibJab.com and OfficeMax.com (“Third Party Sites”). You may also find links to Third Party Content and Sites in communications you receive from the Elf Site. Operators do not control, maintain or endorse Third Party Content or Third Party Sites and make no representations or warranties about either. By using the Elf Site, you may be exposed to Third Party Content that is false, offensive, indecent or otherwise objectionable and you agree that Operators will not be liable in any way or under any circumstances for any Third Party Content, including, without limitation, any errors or omissions in any Third Party Content or any loss or damage of any kind you may incur as a result of the use of any Third Party Content or Sites posted, stored, accessed or transmitted via the Elf Site. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE ELF SITE INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. YOU AGREE TO REVIEW AND EVALUATE ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF SERVICE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT, AND BEAR ALL RISKS ASSOCIATED WITH, THIRD PARTY CONTENT AND THIRD PARTY SITES.
9. LINKING POLICY:
Operators grant you the revocable permission to link to the Elf Site; provided, however, that your website, or any third party web sites that link to the Elf Site: (a) may only link to the applicable Elf Site’s home page unless we have provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (c) must not imply that the Operators or the Elf Site is endorsing or sponsoring it or its products, unless we have given our prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in Operators’ sole opinion, harm either OfficeMax, Inc. or JibJab Media, Inc. or either’s products or services; (e) must not use any of either Operator’s trademarks without the prior written permission of the applicable Operator; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion), and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to this Agreement. By linking to the Elf Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in this Agreement, we reserve the right to prohibit linking to the Elf Site for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
10. TERMS OF SALE:
To the extent you can purchase a good or service through the Elf Site, the purchase transaction will be wholly processed and fulfilled by JibJab, and governed by the JibJab Terms of Sale and any other Additional Terms that are posted therewith.
11. COLLABORATIVE CONTENT AND VIRAL DISTRIBUTION:
Certain functionality on the Elf Site permits collaborative creation of content by users (“Collaborative Content”). Your contributions to the Collaborative Content are User Materials except that the resulting content is subject, in addition to all other applicable terms, to the following additional provisions as a condition to your use of any such functionality and the use of Content, if any, made available for use in connection with the Collaborative Content on the Elf Site:
1. the license to use the Content in connection with Collaborative Content or otherwise in association with User Mat
erials is limited to Content specifically made available by Operators for that purpose, and may be revoked by Operators at any time without liability to you;
2. your use of the Collaborative Content is subject to this Agreement and any additional terms and conditions as Operators may from time-to-time require;
3. you will not make any commercial use of the Collaborative Content, or the Content made available for use in the Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit same, in whole or in part, except that you may use the Elf Site to create Collaborative Content pursuant to this Agreement and, if expressly permitted on the Elf Site, you may engage in Viral Distribution pursuant to this Agreement.
If expressly permitted on the Elf Site, Operators grant you a limited, revocable permission to engage in Viral Distribution of Collaborative Content as may from time to time be made available on the Elf Site for such purpose. “Viral Distribution” means, for non-commercial purposes only: (a) sending Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery; (b) reproducing copies of Collaborative Content for personal use; and (c) posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content.
You agree to include, and not remove or alter Operators trademarks, copyrights or other proprietary rights notices specified on the Elf Site and within e-mail page(s), when displaying any Collaborative Content, and you agree to comply with usage guidelines that may be provided by Operators from time to time. WE DO NOT ENCOURAGE OR REWARD YOU FOR VIRAL DISTRIBUTION AND YOU AGREE NOT TO ENAGAGE IN SPAMMING OR OTHER UNLAWFUL OR CONTROVERSIAL BEHAVIOR IN CONNECTION THEREWITH.
12. PROPRIETARY RIGHTS:
You agree that all content and materials available on the Elf Site are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Operators, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from materials or content available on the Elf Site, or otherwise use any content, copyrights, trademarks or intellectual property of Operators in any way without Operators’ prior, written consent. You also agrees not to retrieve data or other content or any materials from the Elf Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of “bots” or otherwise. You agree not to use any of Operators’ content, names or trademarks as metatags on other web sites. You agree not to display any of the Elf Site in a frame (or any of our content via in-line links) without Operators’ express written permission.
13. COPYRIGHT AGENT:
You may not use the Elf Site for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (full text at http://www.copyright.gov), OfficeMax has designated an agent for receiving notices of copyright infringement relating to the Elf Site and OfficeMax follows the notice and take down procedures of the DMCA. OfficeMax has a policy of terminating the accounts of users who (in its reasonable discretion) are repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide OfficeMax’s copyright agent with the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. OfficeMax’s copyright agent for notice of claims of copyright infringement on or regarding the Elf Site may be reached at:
Copyright Notices c/o General Counsel
263 Shuman Blvd.
Naperville, IL 60563
T: 630 864 5070
F: 630 864 4527
This contact information is for inquiries regarding potential copyright infringement on the Elf Site only and no other correspondence to this information will be addressed.
14. MEMBERSHIP AND REGISTRATION:
Certain areas or services within the Elf Site may require registration or may otherwise ask you to provide information to participate in certain features or access certain Content or User Materials. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Content or User Materials or participate in certain features of the Elf Site. When you provide information to the Elf Site, you agree to provide only true, accurate, current and complete information. If you register with either OfficeMax or JibJab, you will select a username and password when completing the registration process. You are solely and fully responsible for maintaining the confidentiality of your username and password and restricting access to your computer (or other internet access device, as applicable), and will be solely and fully responsible for all activities that occur under using that username and password to access the Elf Site. You agree to: immediately notify Operators of any unauthorized use of your username and password or any other breach of security and log off from account at the end of each session. Operators cannot and will not be liable for any loss or damage arising from your registration on the Elf Site. In addition, if you register with JibJab you will be required to verify your email address. If you do not verify your email address within the time indicated your registration may be cancelled. By registering with Elfyourself.com you are also registering with JibJab.com and your chosen username and password will work on both sites.
15. REPRESENTATIONS AND WARRANTIES:
You represent and warrant that:
1. You have the full right and power to enter into and perform this Agreement and to grant Operators all rights to use the User Materials as contemplated in this Agreement, including, without limitation, the license grants in this Agreement,
2. You exclusively own and/or control all right, title and interest (including, without limitation, copyright) in and to the User Materials, and have secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for you to enter into and perform this Agreement and to grant Operators all rights to use the User Materials as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements
that are used or otherwise incorporated into the User Materials),
3. the User Materials (and Operators’ use thereof as contemplated under this Agreement) do not and will not infringe, misappropriate or violate any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
4. all information that you have provided or will provide to Operators is true and complete,
5. the User Materials do not and will not violate any law, statute, ordinance or regulation,
6. the User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening, (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws (iii) denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, (iv) include images or the likeness of any individual other than you (except where you have obtained express permission from such other individual(s) for such exploitation), (v) encourage or otherwise depict drug use, (vi) make use of offensive language or images, (vii) promote physical harm of any kind against any individual or group or characterize violence, (viii) contain any personal contact information of you or any other individual, (ix) promote 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 manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (xi) solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or (xii) engage in any commercial activities whatsoever and/or sales without Operators’ prior written consent.
7. the User Materials do not and will not contain any viruses spyware, adware or other programming routines that may detrimentally interfere with computer systems or data, whether those of Operators or any third party.
16. MEMBER DISPUTES:
You are solely responsible for your interactions with other users of the Elf Site, whether online or offline. We are not responsible or liable for the conduct of any user. Operators reserve the right, but have no obligation, to monitor disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
17. ITEMS AVAILABLE FOR DOWNLOAD AND THIRD PARTY PAYMENTS:
To the extent that we make any applications, software or functionalities available for download or use from or through the Elf Site (the “Downloadable Items”), such Downloadable Items are the copyrighted work (as between you and the Operators), of Operators or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. Note that if you install certain applications that may be available via the Elf Site, you consent to the download of software to your computer and accept this Agreement and any Additional Terms related to such application. With respect to any User Materials that you download from or through the Elf Site, you are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the User Materials (including, without limitation, any such obligations that may arise from Operators’ use of such User Materials as authorized in this Agreement). You also agree that any Downloadable Items you obtain from the Elf Site (whether for free or for a fee) are only provided to you for your personal, non-commercial use and are not meant for you to further distribute.
You agree to defend, indemnify, reimburse and hold Operators and their parents, subsidiaries and affiliated entities, and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all claims, damages, investigations, liabilities, loss, damages, judgments, settlements, costs and expenses (including attorney’s fees, costs and expenses and court costs) that directly or indirectly arise out of or are directly or indirectly related to:
1. your use of the Elf Site or activities in connection with the Elf Site;
2. the User Materials;
3. any anticipatory breach, breach or alleged breach of your representations and warranties and/or any anticipatory breach, breach, alleged breach or violation of any other terms and conditions of this Agreement;
4. your violation or alleged or threatened violation of any laws, rules regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities;
5. information or material transmitted through your computer to the Elf Site as User Materials or otherwise, even if not submitted by you, that infringes, violates or misappropriates any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, trade dress, defamation, right of privacy or publicity or moral rights of any third party,
6. any misrepresentation made by you; and
7. Operators use of your information or your User Materials.
You agree to fully cooperate as required by the Operators in the defense of any claim. Operators reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of the Operators.
19. ELF SITE PERFORMANCE:
You acknowledge and agree that the operation of the Elf Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Operators will not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Operators service. There are no assurances whatsoever that any of the User Materials or any part or element thereof will actually be utilized on the Operators Site or if so utilized continue to be available for any particular time. Operators have the right, in Operators’ sole and absolute discretion, to remove from the Elf Site at any time the User Materials or any part thereof. Notwithstanding the foregoing, Operators do not control the content of the User Materials and do not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content submitted to the Elf Site. The Elf Site may be discontinued at any time, with or without reason and without any liability to you or to any third party for any modification or discontinuance of any or all of the Elf Site.
20. NO WARRANTY:
THE ELF SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPERATORS OR ANY OF ITS EMPLOYEES; DIRECTORS; OFFICERS; SHAREHOLDERS; AGENTS; VENDORS AND CONTRACTORS MAKE NO WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER EITHER EXPRESS OR IMPLIED, ABOUT, WITHOUT LIMITATION: THE ELF SITE; THE CONTENT ON OR PROVIDED THROUGH THE ELF SITE; USER MATERIALS; THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE ELF SITE; ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT OR THROUGH THE ELF SITE; AND/OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRAN
SMITTED TO OPERATORS OR VIA THE ELF SITE. IN ADDITION, THE OPERATORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
OPERATORS FURTHERMORE DO NOT REPRESENT OR WARRANT THAT: THE ELF SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR CONTINUOUSLY AVAILABILE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE ELF SITE OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. OPERATORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE ELF SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE ELF SITE, THAT YOUR USE IS AT YOUR SOLE RISK. OPERATORS DO NOT WARRANT THAT YOUR USE OF THE ELF SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND OPERATORS SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS. BY ACCESSING OR USING THE ELF SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE ELF SITE.
21. NO LIABILITY FOR THIRD PARTY USE:
OPERATORS DO NOT ENDORSE THE USER MATERIAL OR COLLABORATIVE CONTENT, ARE NOT RESPONSIBLE FOR THE USER MATERIAL OR COLLABORATIVE CONTENT AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER CONTENT OR COLLABORATIVE CONTENT) USE OF THE USER MATERIALS OR COLLARBORATIVE CONTENT MADE AVAILABLE ON THE ELF SITE BY THE USER PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU WILL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD-PARTY, AND NOT FROM OPERATORS. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS USER MATERIALS FROM OPERATORS (WHETHER OR NOT WITH OPERATORS’S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED UNDER THIS AGREEMENT, YOU WILL SEEK REDRESS FROM THE OTHER PERSON AND NOT FROM OPERATORS, AND THAT YOU WILL NOT HOLD OPERATORS RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
22. EXCLUSION OF DAMAGES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) WILL OPERATORS, THEIR OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: THE ELF SITE; THE CONTENT; USER MATERIALS; YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE ELF SITE; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE OPERATORS OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE ELF SITE; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; ANY ERRORS OR OMISSIONS IN THE ELF SITE’ TECHNICAL OPERATION; OR ANY DAMAGE TO YOUR OR ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE OR DEVICE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER OR NOT OPERATORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTE: SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN NO EVENT WILL OPERATORS’ TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED TWENTY DOLLARS ($20). YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OPERATORS’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE OPERATORS AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE OPERATORS.
BY ACCESSING THE ELF SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
YOU ACKNOWLEDGE AND AGREE THAT OPERATORS HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN YOU AND OPERATORS, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
23. COPYRIGHT AND TRADEMARK NOTICES:
You acknowledge and agree that the names OfficeMax and JibJab, the Operators logos and characters, and the layout and design of the Elf Site, among other marks that may appear on the Elf Site are, as between you and Operators, trademarks of Operators (the “Operators Marks”). Other trademarks and service marks on the Elf Site may be the property of the advertisers, content partners and/or providers, or other third parties. You may not use any of the Operators Marks without Operators’ prior written permission, and you may not use any third-party marks without the third party’s prior written permission.
24. LOCATION OF ELF SITE AND EXPORT CONTROLS:
The information provided on the Elf Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Operators to any registration requirement within such jurisdiction or country. Operators control and operate the Elf Site from offices located in the United States and make no representations or warranties that the information, products or services contained on the Elf Site are appropriate for use or access in other locations. Anyone using or accessing the Elf Site from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Elf Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide. Software from the Elf Site (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Elf Site or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, o
r any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
25. GOVERNING LAW, JURISDICTION:
THIS AGREEMENT WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION’S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT WILL BE THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN COOK COUNTY, ILLINOIS, AND USER AND OPERATORS BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
Operators have the right to assign this Agreement in whole or in part to any person or business entity. You may not assign your rights or delegate your obligations under this Agreement without the prior written consent of Operators.
27. ENTIRE AGREEMENT, SEVERABILITY AND MODIFICATION:
This Agreement, together with certain Additional Terms, sets forth the entire understanding and agreement of your and Operators as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter. If any provision of this Agreement will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. Operators’ failure to act with respect to a breach by you or others does not waive Operators’ right to act with respect to antecedent, subsequent or similar breaches.
28. STATUTE OF LIMITATIONS:
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Operators reserve the right to change the terms of this Agreement from time to time in their sole discretion. Any change or modification made by Operators will be effective immediately upon posting on the Elf Site. By continuing to use the Elf Site after such notice, you agree to be bound by the changes to this Agreement and the new terms of the Agreement will govern all prior and future submissions of User Materials.