Terms of Service
Last Updated: February 18, 2010
Thank you for using My.Mckinley.Com ("My McKinley") brought to you by McKinley, Inc. ("McKinley", "we" or "us")!
These Terms of Service contain general terms that apply to you as a user of My McKinley. When using My McKinley, you will also be subject to the McKinley Privacy Policy and additional posted guidelines, policies or rules applicable to specific services and features on My McKinley, which may be posted by us from time to time (collectively, the "Guidelines").
These Terms of Service, including any Guidelines and future modifications (collectively the "Terms of Service" or "Agreement") govern your use of My McKinley and is a legal contract between you and McKinley.
By registering with us or using or browsing My McKinley, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, you can stop using My McKinley at any time.
My McKinley is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use My McKinley. Any person who provides their personal information through My McKinley represents to us that they are 13 years of age or older.
You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using My McKinley as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms "you" and "your" in this Agreement refers to your company or legal entity.
1. Definitions
"Content" means (i) any work of authorship in a Social Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted My McKinley. "Your Content" is any Content that you submit to My McKinley, as a My McKinley Member.
"Members" means My McKinley Members.
"McKinley Technology" means the past, present and future content of My McKinley, including all software in any format (including the Platform Code and Network Code), hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectible elements of My McKinley and all other tangible or intangible materials related to, displayed, performed or distributed on My McKinley and My McKinley itself, including, the selection, sequence, and "look and feel" and arrangement of items on My McKinley, and all McKinley Marks (as defined below), domain names, patents, and other intellectual property. McKinley Technology does not include Your Content or Your Code.
"McKinley Resident" is anyone who is a lease holder, co-resident, or underage children at any apartment community managed by McKinley.
"McKinley Lease" or "Lease" refers to the lease between McKinley and a McKinley Resident.
"My McKinley ID" is an account you create with McKinley which includes a name, email address, age authentication and password. "My McKinley Members" are Users who complete a registration process with McKinley and obtain a My McKinley ID.
"My McKinley Member Data" is data collected from Users by McKinley, including the data collected for the My McKinley ID and any data provided in Your My McKinley Profile (as defined below).
"My McKinley Member Services" are the services provided by McKinley to Members. My McKinley Member Services include, but aren\'t limited to: Member registration, Network Member sign in and authentication, a message center, and friends.
"My McKinley Profile" means information that, if you are a Member, you have provided to McKinley that is aggregated by McKinley into a master profile.
"Platform Code" means the proprietary portion of My McKinley that is used to interpret the Network Code and other services available on My McKinley.
"Third Party Software" means software that is licensed to you by third parties, including software that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.
"Users" are all end users of My McKinley, and include you, any unregistered users, all My McKinley Members, and all Third Party Application Developers.
"Your Code" means any script, code, or other computer software uploaded by you to My McKinley.
2. Your Content and Licenses to Your Content
McKinley does not claim any ownership rights in Your Content. After posting Your Content, you continue to retain ownership of Your Content, and you continue to have the right to use and license Your Content in any way you choose. The Content that you upload to any Social Network needs to comply with the terms of this Agreement. At any point, you can take Your Content from My McKinley and cancel your account and McKinley does not retain any license rights except as provided below.
You hereby grant McKinley, during the course of your usage of My McKinley, a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Your Content (a) for the sole purpose of operating and making Your Content available on My McKinley and in all current and future media in which My McKinley may now or hereafter be distributed or transmitted or (b) for our internal business purposes; and (ii) disclose metrics regarding Your Content on an aggregated basis for advertising, marketing and business development purposes. If you wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. Without limiting the foregoing, McKinley reserves the right to retain copies of Content for archival purposes after termination of the Agreement.
You hereby agree that if Your Content is removed from My McKinley due to a violation of these Terms, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, McKinley shall have the right to use, reproduce and exploit Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of McKinley, any individual, or the general public.
You are responsible for making sure that you have all rights in Your Content, including the rights necessary for you to grant the foregoing licenses to Your Content. You are solely responsible for Your Content. You understand that whether or not Your Content is published or marked private by you, McKinley does not guarantee any confidentiality or privacy with respect to any of Your Content. You agree not to include any advertising in any of Your Content..
Additionally, you understand and agree that Your Content that is displayed on My McKinley may continue to appear on My McKinley, even after you have terminated your Member account or terminated these Terms of Service, as portions of Your Content may have been incorporated into Member profiles, RSS feeds or other features.
In addition to the rights, licenses and privileges referred to above, you agree that McKinley, in its sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of My McKinley, and any products, goods, features, capabilities and/or services associated with My McKinley.
You should be aware that McKinley is not required and may not keep back-up copies of Content (including Your Content) on My McKinley Content is deleted. Additionally, McKinley makes no guarantee, either during or after the term of this Agreement, that Your Content will be safely stored on My McKinley and you should independently back-up Your Content.
3. Licenses From McKinley
License to My McKinley
During and subject to the terms and conditions of this Agreement, McKinley hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to access and use My McKinley solely to enable your use of the My McKinley Member Services. For clarity, aside from the foregoing limited license, you acknowledge that you shall acquire no rights in the Platform Code.
You agree that, as between you and McKinley, all the intellectual property rights in My McKinley, which does not include Your Content or Your Code, are owned by McKinley or its licensors.
License Restrictions
Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:
- Run, rent, lease, loan, or sell access to My McKinley or the McKinley Technology.
- Decompile or reverse engineer or attempt to access the source code of the software underlying My McKinley or McKinley Technology.
- Copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any McKinley Technology.
- Access My McKinley to build a product using similar ideas, features, functions, interface or graphics of My McKinley.
- Access (or attempt to access) any service on My McKinley by any means other than as permitted in these Terms of Service.
- Circumvent, disable or otherwise interfere with security related features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of Content and Third Party Content therein.
- Access My McKinley to upload Your Code or Your Content to cause a breach of security to My McKinley or any Social Network or interfere with the proper working of My McKinley or prevent others from using My McKinley.
- Delete the copyright and other proprietary rights notices on My McKinley.
4. Independent Development; Feedback
You agree that McKinley may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing McKinley from creating or fully exploiting such software, content and other items, without any obligation to you.
You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to My McKinley ("Feedback"). If you elect to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant McKinley a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and otherwise exploit Feedback.
5. McKinley Trademarks and Legal Notices
McKinley trademarks, logos, images, service marks, trade names and other distinctive branding features used on My McKinley "McKinley Marks" are the trademarks of McKinley and may not be used without permission. McKinley is not granting you a license under any intellectual property right to the McKinley Marks. Other trademarks, logos, and trade names that may appear on My McKinley are the property of their respective owners.
6. McKinley Ownership Rights
You agree that, as between you and McKinley, McKinley owns all right, title and interest, including, all intellectual property rights, in and to the McKinley Technology. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in this Agreement. Any rights not expressly granted herein, are reserved to McKinley. You agree to abide by all copyright notices, information, or restrictions contained in any part of My McKinley. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on My McKinley, including notices on any McKinley Technology you download, transmit, display, print or reproduce from or using My McKinley.
7. Advertising and Promotion for Network Creators
If you are Member, you agree not to include any advertising for anything, including ads served via an ad-server service like Google AdSense. If you run ads, McKinley will have the option, which we may exercise on notice to you, to offer and display, in partnership with you, all or some of such advertisements. McKinley may establish general policies and guidelines surrounding the running of your own ads ("Advertising Policies"). Any such Advertising Policies are part of this Agreement and are subject to change from time to time.
YOU AGREE THAT McKINLEY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR SOCIAL NETWORK.
8. Third Party Content and Hyperlinks to Third Party Sites
Content from other Members or advertisers, including, information about third party products and services and any Third Party Applications, is made available to ("Third Party Content") on My McKinley. The inclusion of Third Party Content on My McKinley does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and McKinley has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, McKinley or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any Social Network) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using My McKinley you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use My McKinley at your own risk.
Additionally, McKinley or third parties may provide hyperlinks, or any other form of link or redirection of your connection to other sites ("Third Party Sites"). These Third Party Sites are in no way integrated into My McKinley and the inclusion of any link on a Social Network does not imply McKinley\'s affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. McKinley expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through My McKinley. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
9. Representations and Warranties.
You hereby represent and warrant to McKinley that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of My McKinley including your promotional or other activities off My McKinley that relate to Your Social Network; (b) you have the right to grant to McKinley the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code and Your Content; (c) Your Code and Your Content does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content or Your Social Network contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with My McKinley, or intercept or expropriate any system data or personal information from My McKinley.
10. Acceptable Use and Conduct
You are solely responsible for your conduct, Your Code, and Your Content on My McKinley. We want to keep the Social Networks on My McKinley safe and fun for everyone and the use of My McKinley for unlawful or harmful activities is not allowed. In defining "safe and fun," you specifically agree that:
You will not post, email or make available any Content to Users or use My McKinley:
- In a manner that infringes, violates or misappropriates any third party\'s intellectual property rights or other proprietary rights or contractual rights;
- in a manner that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- to engage in spamming, "chain letters," "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms of Service, any applicable laws, regulations or generally-accepted advertising industry guidelines, including to other Users whether on or off My McKinley in connection with Your Social Network;
- in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
- in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another\'s privacy;
- in a manner that is harmful to minors in any way;
- in a manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by McKinley;
- to impersonate a McKinley employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to a Social Network or My McKinley without authorization;
- to interfere or attempt to interfere with the proper working of My McKinley or prevent others from using My McKinley, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to My McKinley, or that otherwise negatively affects other persons\' ability to use My McKinley;
- to use any manual or automated means, including agents, robots, scripts, or spiders, to access or manage any Member\'s account or to monitor or copy My McKinley (including the Network Code or Platform Code) or the content contained therein;
- to facilitate the unlawful distribution of copyrighted content;
- in a manner that includes personal or identifying information about another person without that person\'s explicit consent;
- in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through My McKinley or to Users; and
- in a manner that constitutes or contains any form of advertising or solicitation if (1) posted in Your Content; or (2) emailed to Users who have requested not to be contacted about other services, products or commercial interests.
Additionally, you agree not to:
- "Stalk" or otherwise harass anyone;
- Collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations;
- Request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of My McKinley, including My McKinley ID passwords from a Network Creator, or to proxy authentication credentials for any Member of My McKinley for the purposes of automating logins to My McKinley;
- Use any profanity or the description or name of any illegal activity.
- Post any Content containing child pornography to any Social Network. McKinley absolutely does not tolerate this and will report any suspected instances of child pornography, including reporting any My McKinley Member Data, to law enforcement, including the National Center for Missing and Exploited Children;
- Post any Content that McKinley determines in its sole discretion, depicts or contains rape, extreme violence, murder, bestiality, incest, or other similar content;
- Post any Content that McKinley determines constitutes pornography or is adult in nature. McKinley\'s current policy is subject to change.
- Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from My McKinley - except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or "well-behaved" web services/RSS/Atom clients. We reserve the right to define what we mean by "well-behaved";
- Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on McKinley\'s infrastructure;
- Attempt to gain unauthorized access to McKinley\'s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, My McKinley;
- Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of My McKinley or for using it for purposes unrelated to McKinley); and
- Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of My McKinley.
You agree not to authorize or encourage any third party to use My McKinley to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify McKinley in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in this Agreement.
11. My McKinley Platform Policies
McKinley may establish general polices and limits concerning use of My McKinley ("My McKinley Platform Policies"), including (and without limitation) the maximum number of days that Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you , the maximum number of times and duration for which you may access My McKinley in a given period of time, the maximum bandwidth used by Your Content, and the maximum CPU power used by Your Content.
12. McKinley\'s Relationship with Users
You acknowledge that McKinley may terminate your account, and remove your My McKinley ID, Content and Network Member Data, as well as disable your access to any and all Social Networks and My McKinley, in accordance with the terms of this Agreement. If you are a Network Member, you acknowledge that nothing in any agreement (or related policies) you may be subject to with any Network Creator or other party will alter, impair, supersede, amend or otherwise affect in any way any terms of this Agreement, any Guidelines or McKinley\'s Privacy Policy.
13. Copyright Infringement/Digital Millennium Copyright Act Compliance
It is McKinley\'s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act ("DMCA"). McKinley may remove any allegedly infringing Network Code or Content without any liability to you.
McKinley will promptly terminate without notice any Member\'s access to My McKinley, in appropriate circumstances where the Member is a "repeat infringer" of copyrights. Generally, McKinley will consider a Member a repeat infringer if it has received more than two third-party notices of alleged infringement concerning Content or Network Code posted by that Member anywhere on My McKinley. McKinley, however, reserves the right to identify and terminate Members under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that Member.
14. Your Account
You need to register and create a My McKinley ID in order to become a My McKinley Member. You are responsible for keeping your My McKinley ID password secure. My McKinley IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your My.McKinley ID. McKinley reserves the right to log off or deactivate Member accounts that are inactive for an extended period of time.
You may not use anyone else\'s account or My McKinley ID at any time, without the permission of the account holder. You should never give out your password to another individual or entity. McKinley will not be liable for any loss that you may incur as a result of someone else using your My McKinley ID, or password, either with or without your knowledge. However, you may be held liable for losses incurred by McKinley or another party due to someone else using your My McKinley ID, or password. In other words, please be careful with your identity and passwords.
15. McKinley Residents
Nothing written, said or otherwise implied on My McKinley is considered to be a change to the agreement between McKinley and McKinley Resident in their Lease. No communications by McKinley Resident or McKinley through My McKinley will necessarily be considered to satisfy any condition in the Lease.
16. Disclaimer of Warranties
YOUR USE OF MY MCKINLEY, AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-MCKINLEY CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. MY MCKINLEY AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-MCKINLEY CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MCKINLEY AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. MCKINLEY AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT MY MCKINLEY, OR ANY NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-MCKINLEY CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT MY MCKINLEY OR THE SERVER THAT MAKES MY MCKINLEY AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MCKINLEY MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON MY MCKINLEY OR (B) THE COMPATIBILITY OF YOUR CODE OR ANY NON-MCKINLEY CODE WITH ANY MCKINLEY TECHNOLOGY.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF MY MCKINLEY IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MCKINLEY OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM MY MCKINLEY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
17. Indemnity
You agree to indemnify, defend, and hold harmless McKinley, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys\' fees) arising out of or relating to:
- Your Code, Your Content;
- Your use of any Non-McKinley Code or Third Party Applications;
- Your use or misuse of, or connection to, My McKinley;
- Your breach or alleged breach of this Agreement;
- Your violation of any rights (including intellectual property rights) of a third party;
- Your use or misuse of any User data (including My McKinley Member Data and Network Member Data), including, in violation of the McKinley Privacy Policy and
- Your breach or alleged breach of any agreement or policy between you and other Users.
McKinley reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of McKinley. McKinley will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
18. Your Interactions with Other Users
Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party, McKinley is under no obligation to become involved.
You release McKinley, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. 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." And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
19. Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL MCKINLEY OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF MCKINLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE MY MCKINLEY; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO MCKINLEY BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN MCKINLEY (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON MY MCKINLEY OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
20. Changes to My McKinley
McKinley reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing My McKinley or any part thereof with or without notice. McKinley will not be liable to you or to any third party for any modification, suspension or discontinuance of My McKinley.
21. Amendments
We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.mckinley.com or elsewhere on My McKinley. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of My McKinley after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to my.mckinley.com or elsewhere on My McKinley. The revised version will apply to you immediately if you are a User who registers or first uses My McKinley on or after the posting of the revised version.
22. Term and Termination
Term
This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your membership on My McKinley at any time and for any or no reason by navigating to the "Manage Account" page and clicking the "Delete Account" button while logged in.
Termination
McKinley has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of My McKinley or any Social Network, (ii) remove and discard any Network Code or Content within any Social Network or anywhere on My McKinley or (iii) shut down a Social Network, with or without notice, and with no liability of any kind to you.
If you terminate your account, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.
Effects of Terminating
Upon deactivating your account, this Agreement terminates and you will no longer have a right to access your account, Your Code, Your Content, Your Network Member Data or Your Social Network(s). McKinley will not have any obligation to assist you in migrating your data, Your Content, Your Network Member Data, Your Code or Your Social Network(s) off of My McKinley and McKinley does not keep any back-up of any of Your Content or Your Network Member Data. McKinley is not responsible for deleting Your Code, Network Code or Content on your behalf. Note that, even if Your Code, or Content is deleted from McKinley\'s active servers, it may remain in our archives (but we have no obligation to archive or back-up Your Code or such Network Code or Content), and subject to the licenses set forth in this Agreement.
Survival
The following Sections will survive termination of these Terms of Service for any reason: Sections 1, 3, 4-9, 13-24, 27-33.
23. Governing Law; Venue
This Agreement shall be governed by the laws of the State of Michigan without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Washtenaw County, Michigan for the purpose of litigating all such claims or disputes.
24. Relationship of the Parties
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that McKinley has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
25. United States Export Controls
You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department\'s Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from McKinley under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, McKinley from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
26. No Third Party Beneficiaries
The parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
27. General
The failure of McKinley to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties\' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You may not delegate your duties under this Agreement or assign this Agreement or your My McKinley accounts or My McKinley IDs, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. McKinley may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties\' permitted assignees, transferees and successors.
This Agreement, which incorporates the McKinley Privacy Policy and the Guidelines, constitutes the entire agreement between you and McKinley and governs your use of My McKinley, superseding any prior agreements (whether written or oral) between you and McKinley regarding the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in this Agreement.
The terms "including" and "includes" shall be deemed to be followed by the statement "without limitation" and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
McKinley may provide you with notices, including those regarding changes to this Agreement or any of McKinley\'s terms and conditions, by email, regular mail, or postings on My McKinley. Notice will be deemed given twenty-four (24) hours after email is sent, unless McKinley has previously been notified that the email address is invalid. Notices not pertaining to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to My McKinley) are deemed given two (2) days following the initial posting.
28. Contacting McKinley
You may contact McKinley in the following ways:
E-Mail:
live@mckinley.com
Postal:
McKinley Inc.
ATTN: My McKinley.
320 N Main St. #200
Ann Arbor, MI 48104
