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Apostrophe Terms of Service
These Terms of Service ("Agreement") are a contract between you and P'unk Avenue, LLC d/b/a P'unk Avenue ("P'unk Avenue"), and govern your use of the www.apostrophenow.com, apostrophenow.com and my.apostrophenow.com websites ("Website") and the Apostrophe web hosting service, together with any and all associated P'unk Avenue Software and Servers (hereinafter collectively the "Service"), your rights and obligations with respect to Content contained in the Service and that you place in the Service, including User Content and P'unk Avenue Content, and associated Intellectual Property Rights thereto, as well as your creation of an account, (hereinafter an "Account") for use in connection with the Service. This Agreement may be changed by P'unk Avenue effective immediately by notifying you as provided in Section 30 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service.
For purposes of this Agreement:
(a) "Website" means the websites and services available from the domain and subdomains of www.apostrophenow.com, apostrophenow.com and my.apostrophenow.com and any related or successor domains from which P'unk Avenue may offer services;
(b) "P'unk Avenue Software" is the software provided to you by P'unk Avenue and/or its suppliers under license in connection with the Service;
(c) "Servers" are the online environments that support the Service;
(d) "Content" means any works of authorship, creative works, graphics, images, textures, photos, logos, sounds, music, video, audio, computer programs, applications, animations, text, objects, scripts, and interactive features;
(e) "User Content" means any Content that a user of the Service has uploaded, published, or submitted to or through the Servers, Website, or other areas of the Service;
(f) "Intellectual Property Rights" means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law; and
(g) "P'unk Avenue Content" is the Content provided by P'unk Avenue under license in connection with the Service, except all User Content (as defined herein), including but not limited to Content we created or licensed from third parties.
2. Age Requirements and Verification for P'unk Avenue.
By accepting this Agreement in connection with an Account, you represent that you are at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, and you have the legal authority to enter into this Agreement. You further agree that as a condition to accessing the Service, you will submit to account verification as required by P'unk Avenue, and provide only true and accurate identification documentation to P'unk Avenue or its third party service providers to verify your age.
3. Establishing an Account
You must establish an Account with P'unk Avenue to use the Service, except for those portions of the Website which P'unk Avenue allows users to access without registration. You may not establish an account if you are currently suspended, terminated or prohibited from using the Service. You agree to provide accurate, current and complete information about yourself as prompted by the registration form ("Registration Data") and to use the account management tools provided to keep your Registration Data accurate, current and complete.
4. Account Name
You must choose an account name to identify yourself to P'unk Avenue in connection with your Account (your "Account Name").
5. Responsibility for Use of Account
You are responsible for all activities conducted through your Account. In the event that fraud, illegality or other conduct that violates this Agreement is discovered or reported (whether by you or someone else) that is connected with your Account, we may suspend or terminate your Account as described in Section 22.
6. Selection and Use of Account Password
At the time your Account is opened, you must select a password. You are responsible for maintaining the confidentiality of your password and are responsible for any harm resulting from your disclosure, or authorization of the disclosure of your password or from any person's use of your password to gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of your password to any other person is at your own risk.
P'unk Avenue will bill you for the Service, in advance, on a monthly basis, at the rates set forth for the Service at www.apostrophenow.com. Refunds will be extended solely at the option of P'unk Avenue under circumstances we deem appropriate. You may cancel or downgrade your plan at any time, however we do not offer pro-rated refunds for partial months of service in the event that you cancel or downgrade your plan. Refunds will not be issued for unused partial months. Failure to pay the monthly fee due for the Service on or before each recurrence the day of the month on which service began for that particular customer site shall be grounds for immediate cancellation of the Service to you in accordance with Section 22 herein. In the event that service began on a day of the month which does not exist in a particular month, fees are due on the last day of the month. For instance, if a site is created on the 30th of January, the next monthly fee is due on the last day of February.
P'unk Avenue has the right to change and/or eliminate any aspect(s), features or functionality of the Service as it sees fit at any time without notice, and P'unk Avenue makes no commitment, express or implied, to maintain or continue any aspect of the Service. You acknowledge that your use of the Service is subject to this risk and that you knowingly assume it and make your decisions to participate in the Service, upload Content and spend your money accordingly.
9. Disclaimer of Responsibility for Conduct of Third Parties
10. Right of P'unk Avenue to Refuse or Delete Content, Deny or Disable Access
You agree that P'unk Avenue has and may exercise the right in its sole discretion to pre-screen, refuse, or delete any Content or services from the Service or disable any user's access to the Service without notice or liability to you or any other party, including upon our belief that such user's conduct, Content, services, or use of the Service is potentially illegal, threatening, or otherwise harmful to any user or other person or in violation of this Agreement, or other policies.
11. Interruption of Service
P'unk Avenue may on occasion need to interrupt the Service with or without prior notice. You agree that P'unk Avenue will not be liable for any interruption of the Service (whether intentional or not), and you understand that except as may otherwise be specifically provided in this Agreement you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of data loss, we will not be liable for any purported damage or harm arising therefrom. P'unk Avenue owns the bits and bytes of electronic data stored on its Servers, and accordingly will not be liable for any deletion, corruption or data loss that occurs in connection with the Service. P'unk Avenue will solely determine any disposition of the electronic data stored on its Servers and will have no obligation to reproduce, process, transfer, extract or recreate any data from its Servers. Our ownership of these bits and bytes of electronic data stored on our Servers does not limit or impair any Intellectual Property Rights you may have in your Content as set forth in Section 13 below.
12. Your Rights and Obligations with Respect to Your Content
The Service may provide you with the ability to upload, post, disclose, distribute or otherwise submit Content to the Service. You retain any and all Intellectual Property Rights in Content you submit to the Service. You retain any and all Intellectual Property Rights you already hold under applicable law in Content you upload, publish, and submit to or through the Servers, Website, and other areas of the Service, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of other users or P'unk Avenue in Content that you may use or modify. In connection with Content you upload, publish, or submit to any part of the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize P'unk Avenue and users of the Service to use the Content in the manner contemplated by the Service and these Terms of Service. You grant certain Content licenses to P'unk Avenue by submitting your Content to the Service. You agree that by uploading, publishing, or submitting any Content to or through the Servers, Website, or other areas of the Service, you hereby automatically grant P'unk Avenue a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, perform the Content, and store the Content on servers operated by third-party cloud service providers such as Amazon S3, solely for the purposes of providing the Service. You understand that this license enables P'unk Avenue to display, distribute, and improve the Service. You agree that the license includes the right to copy, analyze and use any of your Content as P'unk Avenue may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the "Service Content License." You also acknowledge that the Service Content License granted to P'unk Avenue with respect to your Content will survive the termination of your Account to permit P'unk Avenue: (i) to retain server copies of particular instances of your Content, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section 12 for any other copies or instances of the same Content that you have not specifically deleted from the Service.
13. P'unk Avenue's Intellectual Property Rights and Limited License Granted to You
P'unk Avenue owns Intellectual Property Rights in and to the Service, except all User Content, including the P'unk Avenue Software, the Websites, the Servers, and the P'unk Avenue Content, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the "P'unk Avenue Marks"). You understand that such Intellectual Property Rights are apart from any rights you may have in Content you upload, publish or submit to the Service, as discussed above. You acknowledge and agree that P'unk Avenue and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Content. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Content, and in and to the P'unk Avenue Marks are reserved by P'unk Avenue. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the P'unk Avenue Marks. P'unk Avenue hereby grants you a non-exclusive, non-transferable, non-sublicenseable, limited, revocable license to access and use the Service as set forth in this Agreement and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with this Agreemet. Additional terms may apply to certain elements of the Service; these terms are available where such separate elements are made available on the Website. If there is any contradiction between any additional terms and this Agreement, then the additional terms shall take precedence only in relation to that particular element of the Service. Any use of the Service, including Content on the Service, other than as specifically authorized in this Agreement, without the prior written permission of P'unk Avenue, is strictly prohibited and will terminate all licenses granted herein. P'unk Avenue includes sample Content in newly generated hosted websites in connection with the Service. P'unk Avenue hereby grants you a non-exclusive, non-transferrable, non-sublicensable, limited revocable license to display and modify this sample Content for use on your hosted website.
14. Your Obligations with Respect to the Intellectual Property Rights of Other Users
You agree that you will not upload, publish, or submit to any part of the Service any Content that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant P'unk Avenue all of the license rights granted in this Agreement. You acknowledge that the Content of the Service is provided or made available to you under license from P'unk Avenue and independent Content providers, including other users of the Service ("Content Providers"). You acknowledge and agree that except as expressly provided in this Agreement, the Intellectual Property Rights of P'unk Avenue and other Content Providers in their respective Content are not licensed to you by your mere use of the Service. You must obtain from the applicable Content Providers any necessary license rights in Content that you desire to use or access. You agree that you will not copy, transfer, or distribute outside the Service any Content in a manner that infringes or violates any Intellectual Property Rights of P'unk Avenue, other Content Providers, or any third parties. You copy and use Content at your own risk. You are solely responsible and liable for your use, reproduction, distribution, modification, display, or performance of any Content in violation of any Intellectual Property Rights. You agree that P'unk Avenue will have no liability for, and you agree to defend, indemnify, and hold P'unk Avenue harmless for, any claims, losses or damages arising out of or in connection with your use, reproduction, distribution, modification, display, or performance of any Content.
While using the Service, you agree that you will not:
(a) Post, display or transmit Content that violates any law, or the rights of any third party including without limitation Intellectual Property Rights;
(b) Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;
(c); Post, display or transmit Content that is harmful, threatening or harassing, defamatory, libelous, false, inaccurate, misleading, or invades another person's privacy;
(d) Post, display or transmit Content that is obscene, hateful, or racially, ethnically or otherwise objectionable;
(e) Post, display or transmit any Content that is explicitly sexual or intensely violent;
(f) Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personal information about other users without their consent;
(g) Post or transmit unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that P'unk Avenue considers to be of such nature;
(h) Engage in malicious or disruptive conduct that impedes or interferes with other users' normal use of the Service; or
(i) Attempt to gain unauthorized access to any other user's Account, password or Content.
Any violation by you of the terms of this Section may result in immediate suspension or termination of your Account without any refund or other compensation.
You agree not to hold P'unk Avenue liable for the Content, actions, or inactions of other users. As a condition of access to the Service, you release P'unk Avenue (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more users, including whether or not P'unk Avenue becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: "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." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. You agree and understand that P'unk Avenue does not control and is not responsible for information you provide to parties other than P'unk Avenue.
18. Disclaimer of Warranties
P'UNK AVENUE PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE P'UNK AVENUE SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN "AS IS" BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR CONTENT OR ANY EXPENDITURE ON YOUR PART, P'UNK AVENUE AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON P'UNK AVENUE'S SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. P'unk Avenue does not ensure continuous, error-free, secure or virus-free operation of the Service, the P'unk Avenue Software, the Websites, the Servers, or your Account, and you understand that you shall not be entitled to refunds or other compensation based on P'unk Avenue's failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
19. Limitation of Liability
IN NO EVENT SHALL P'UNK AVENUE OR ANY OF ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE P'UNK AVENUE SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT P'UNK AVENUE MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL P'UNK AVENUE'S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF (i) ONE HUNDRED DOLLARS (U.S. $100.00); OR (ii) THE RELEVANT AMOUNT SET FORTH IN SECTION 11 HEREIN, IF APPLICABLE. Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to you.
At P'unk Avenue's request, you agree to defend, indemnify and hold harmless P'unk Avenue, its members, officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from: (i) any breach or alleged breach by you of this Agreement, including without limitation your representations and warranties relating to your Content; or (ii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
21. Legal Relationship Between You and P'unk Avenue
You acknowledge that your participation in the Service, including your creation or uploading of Content in the Service, does not make you a P'unk Avenue employee and that you do not expect to be, and will not be, compensated by P'unk Avenue for such activities, and you will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement.
22. Suspension and Termination of Accounts
You may terminate this Agreement by closing your Account at any time for any reason. In such event, P'unk Avenue shall have no further obligation or liability to you under this Agreement or otherwise, and you shall be entitled to no compensation or other payment, remedy, recourse or refund. P'unk Avenue may suspend or terminate your Account if you violate this Agreement. Upon termination of your Account, this Agreement between us will be automatically terminated and you may not re-subscribe to the Service through any other Account or Accounts that you or others may establish. We may suspend or terminate your Account if we determine in our discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of P'unk Avenue or any third party. If P'unk Avenue elects to generally suspend or discontinue the Service, in whole or in part, for any reason, P'unk Avenue may suspend or terminate your Account. In such event, you will not be entitled to compensation for such suspension or termination, and you acknowledge P'unk Avenue will have no liability to you in connection with such suspension or termination.
23. Loss of Content and Account Upon termination of Account
Upon termination of your Account, you will no longer be able to access your Account or access (or transfer or direct the transfer to any other Account) any Content or data you have stored on the Servers. All licenses granted by P'unk Avenue to use the Service will automatically terminate. You acknowledge that you have elected to use the Service notwithstanding the possibility of termination of such license rights under the circumstances set forth in this Agreement. You should ensure that you have only stored Content on the Servers to which you are willing to permanently lose access. You acknowledge and assume the risk of the possibility of suspension or termination of your Account as provided herein, and you represent that you will make your decisions to participate in the Service, contribute Content, spend your money and dispose of transferable licenses at all times knowingly based upon these risks.
24. Liability for Unpaid Fees Upon Termination of Account
Upon termination, you will remain liable for any unpaid amounts owed by you to P'unk Avenue.
25. Survival of Terms After Termination
The following terms will survive any termination of this Agreement: Sections 12, 13, 14, 15, 17, 19, 20.
In the event of a dispute between you and P'unk Avenue, other than with respect to claims for injunctive relief, the dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Philadelphia, Pennsylvania. In the event that there is any dispute between you and P'unk Avenue that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Philadelphia, Pennsylvania. You agree that this Agreement and the relationship between you and P'unk Avenue shall be governed by the laws of the Commonwealth of Pennsylvania without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party's Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
P'unk Avenue is a United States-based service. P'unk Avenue makes no representation that any aspect of the Service is appropriate or available for use outside of the United States. Those who access the Service from other locations are responsible for compliance with applicable local laws. The P'unk Avenue Software is subject to applicable export laws and restrictions.
28. Assignment of Agreement and Account
You may not assign this Agreement or your Account without the prior written consent of P'unk Avenue. You may not transfer or sublicense any licenses granted by P'unk Avenue in this Agreement without the prior written consent of P'unk Avenue. P'unk Avenue may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement.
29. Integration, Interpretation of Section Headings and Severability
P'unk Avenue may provide notice to you and obtain consent from you through (1) the Website at www.apostrophenow.com; (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account. You must give all notices required or permitted under this Agreement at 1168 E. Passyunk Avenue, Philadelphia, PA 19147.
31. DMCA Policy
P'unk Avenue will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (DMCA). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. When a valid DMCA notification is received, the service provider responds under this process by taking down the offending content. On taking down content under the DMCA, we will take reasonable steps to contact the owner of the removed content so that a counter-notification may be filed. On receiving a valid counter-notification, we generally restore the content in question, unless we receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
Filing a Notification
A written notification must be made. This can be done either by fax or written letter (regular mail or courier). Emails will not be accepted unless a prior arrangement has been made. The notification must:
Identify in sufficient detail the copyrighted work that you believe has been infringed upon (i.e., describe the work that you own).
Identify the item that you claim is infringing on your copyright.
Provide a reasonably sufficient method of contacting you; phone number and email address would be preferred.
Include the following statement: "I have good faith belief that the use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law."
Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
Sign the paper
Please note: The DMCA provides that you may be liable for damages (including costs and attorneys fees) if you falsely claim that an item is infringing your copyrights. We recommend contacting an attorney if you are unsure whether Content is protected by copyright laws.
Send the written document to the designated Copyright Agent at P'unk Avenue:
Attn: Designated Copyright Agent
1168 E Passyunk Avenue
Philadelphia, PA 19147
Alternatively, fax the document to 360-656-2321. On the cover sheet, please write ATTN: DMCA NOTIFICATION
Filing a counter-notification
List the items that were removed by P'unk Avenue.
Provide your name, address, telephone number, email address (if available).
State that you consent to the jurisdiction of Federal District Court for the judicial district in which you reside (or Philadelphia, Pennsylvania if your address is outside of the United States).
State that you will accept service of process from the person who provided notification to us of the alleged infringement or an agent of such person.
State the following: "I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
Sign the paper.
Send the written document to the designated Copyright Agent at P'unk Avenue.:
Attn: Designated Copyright Agent
1168 E Passyunk Avenue
Philadelphia, PA 19147
Alternatively, fax the document to 360-656-2321. On the cover sheet, please write ATTN: DMCA COUNTER-NOTIFICATION