Terms of Use - Discussion Draft

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THIS IS FOR DISCUSSION ONLY This is unmodified, un-reviewed Boilerplate text suggested by a lawyer working with the Licensing Working Group. Original Document

Contents

OPENSTREETMAP FOUNDATION WEBSITE TERMS OF USE

Introduction; Your Agreement to these Terms of Use.

Welcome to the OpenStreetMap Foundation (“OSMF”) website, [www.openstreetmap.org] (the “OSMF Site”). The following Terms of Use for the OSMF Site is a legal contract between you, an individual user or a single entity (collectively or individually “Users”), and OSMF regarding your use of the OSMF Site. Together, Users and OSMF are referred to herein individually as “Party” or collectively as the “Parties”. When using the OSMF Site, you will be subject to any additional posted guidelines, terms, or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All Guidelines are hereby incorporated by reference into these Terms of Use.

BEFORE USING THE OSMF SITE, PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, OR USING THE OSMF SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE OSMF SITE.

Eligibility

In order to use the OSMF Site, you must be the age of majority in your jurisdiction and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. You represent that you meet the eligibility requirements in this Section. In any case, you affirm that you are over the age of 13, as the OSMF Site is not intended for children under 13. If you are using or opening an account on the OSMF Site on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you: are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.

Privacy Notice

Your privacy is important to OSMF. OSMF’s Privacy Notice is hereby incorporated into these Terms by reference. Please read this notice carefully for information relating to OSMF’s collection, use, and disclosure of your personal information.

Modification of the Terms

OSMF reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you. All changes shall be effective immediately. In the event of a material change, we will notify you via e-mail according to your account preferences. Please check these Terms periodically for changes. Your continued use of the OSMF Site after the posting of changes constitutes your binding acceptance of such changes.

OSMF Site Access

OSMF grants you permission to use the OSMF Site as set forth in these Terms, provided that, except as expressly permitted in these Terms (i) you use the OSMF Site solely for your personal use; (ii) you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the OSMF Site in any medium without OSMF’s prior written authorization; (iii) you do not alter or modify any part of the OSMF Site other than as may be reasonably necessary to use the OSMF Site for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. The OSMF Site is controlled and offered by OSMF from its facilities in the United Kingdom. OSMF makes no representations that the OSMF Site is appropriate or available for use in other locations. If you are accessing or using the OSMF Site from other jurisdictions, you do so at their own risk and you are responsible for compliance with local law.

Map Data Downloads

OSMF and its licensors may make certain map data (“Map Data”) available to you for download from the OSMF Site. Any Map Data that you may download from the OSMF Site are licensed for use under the terms of the license agreement specified at the time of download.

Ownership; Proprietary Rights

As between the Parties, the OSMF Site, including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the OSMF Site that are provided by OSMF (“OSMF Materials”) are owned and/or licensed by OSMF. OSMF Materials do not include Non-OSMF Content (as defined below). Except as expressly authorized by OSMF, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the OSMF Materials. OSMF reserves all rights not expressly granted in these Terms. User shall not acquire any right, title, or interest to the OSMF Materials, except for the limited rights set forth in these Terms.

User Submissions

General

The OSMF Site may now or in the future permit the submission and posting or linking of data, media, text, audio and video recordings, photos, commentary or any other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are not controlled by OSMF. Except as otherwise agreed to at the time of submission, OSMF makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, OSMF does not guarantee any confidentiality with respect to any User Submissions.

Grant of Rights

When you provide User Submissions to the OSMF Site, such User Submissions may be subject to a separate agreement between you and OSMF, and that agreement may provide certain terms and conditions of use with respect to such User Submissions (including license grants, restrictions, etc.). Such separate agreement shall control in the event of a conflict with the terms and conditions stated herein. In the absence of such separate agreement, by submitting User Submissions to the OSMF Site, you hereby (i) grant OSMF, its affiliates, and sublicensees a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the OSMF Site and OSMF’s (and its successor’s) field of endeavor, including without limitation for promoting and redistributing part or all of the OSMF Site (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered; (ii) grant OSMF, its affiliates, and sublicensees the right to use the name that you submit in connection with such User Submission if they choose; (iii) irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions; and (iv) grant to each user of the OSMF Site a non-exclusive license to access your User Submissions through the OSMF Site, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the OSMF Site and these Terms.

Your Representations and Warranties Regarding User Submissions

You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize OSMF to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by OSMF and these Terms, and (ii) your User Submissions and OSMF’s use of such User Submissions pursuant to these Terms do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.

Prohibited Uses of User Submissions

In connection with your User Submissions, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the OSMF Site: (i) any falsehoods or misrepresentations that could damage OSMF or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.

Non-OSMF Content Disclaimer

You understand that when using the OSMF Site you will be exposed to User Submissions and other third party content (together, the “Non-OSMF Content”) from a variety of sources, and that you may be exposed to Non-OSMF Content that is inaccurate, offensive, indecent, or otherwise objectionable. OSMF does not endorse any Non-OSMF Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will OSMF be liable in any way for or in connection with the Non-OSMF Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-OSMF Content, any intellectual property infringement with regard to any Non-OSMF Content, or for any loss or damage of any kind incurred as a result of the use of any Non-OSMF Content posted, emailed or otherwise displayed or transmitted through the OSMF Site.

Non-Monitoring of Users and Non-OSMF Content

You understand that you, and not OSMF, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the OSMF Site. OSMF does not control the Non-OSMF Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Non-OSMF Content for any purpose. If at any time, OSMF chooses, in its sole discretion, to monitor the Non-OSMF Content, OSMF nonetheless assumes no responsibility for the Non-OSMF Content, no obligation to modify or remove any inappropriate Non-OSMF Content, and no responsibility for the conduct of the user submitting any such Non-OSMF Content. You agree that you must evaluate, and bear all risks associated with the use of any Non-OSMF Content, including any reliance on the accuracy, completeness, usefulness, or legality of such Non-OSMF Content.

Removal of Non-OSMF Content

OSMF and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-OSMF Content that is available on the OSMF Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.

Prohibited Uses of the OSMF Site

  • As a condition of your use of the OSMF Site, you hereby represent and warrant that you will not use the OSMF Site for any purpose that is unlawful or prohibited (including without limitation, the prohibitions in this Section) by these Terms.
  • Except as otherwise permitted, any use by you of any of the OSMF Materials and OSMF Site other than for your personal use is strictly prohibited. Unless otherwise permitted, you agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the OSMF Site, use of the OSMF Site, access to the OSMF Site, or Non-OSMF Content obtained through the OSMF Site, for any purpose other than for your personal use.
  • You agree not to use the OSMF Site if you do not meet the eligibility requirements described in Section 1 above.
  • You agree not to defame, harass, abuse, threaten, stalk or defraud users of the OSMF Site, or collect, or attempt to collect, personal information about users or third parties without their consent.
  • You agree not to intentionally interfere with or damage, impair or disable the operation of the OSMF Site or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
  • You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the OSMF Site, features that prevent or restrict the use or copying of any part of the OSMF Site, or features that enforce limitations on the use of the OSMF Site.
  • You agree not to attempt to gain unauthorized access to the OSMF Site, or any part of it, other accounts, computer systems or networks connected to the OSMF Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the OSMF Site or any activities conducted through the OSMF Site.
  • You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the OSMF Site. You agree neither to modify the OSMF Site in any manner or form, nor to use modified versions of the OSMF Site, including (without limitation) for the purpose of obtaining unauthorized access to the OSMF Site.
  • You agree that you will not use any robot, spider, scraper, or other automated means to access the OSMF Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the OSMF Site.
  • You agree not to utilize framing techniques to enclose any trademark, logo, or other OSMF Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing OSMF’s name or trademarks without our express written consent.
  • You agree not to deep-link to the OSMF Site and will promptly remove any links that OSMF finds objectionable in its sole discretion. You agree not to use any OSMF logos, graphics, or trademarks as part of the link without our express written consent.
  • You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the OSMF Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
  • You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the OSMF Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
  • You agree not to modify, adapt, translate, or create derivative works based upon the OSMF Site or any part thereof, except and only to the extent that such activity is expressly by agreement or permitted by applicable law notwithstanding this limitation.
  • You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
  • Account Information

    In order to access some features of the OSMF Site, you will have to create an account. You represent and warrant that the information you provide to OSMF upon registration and, at all other times, will be true, accurate, current, and complete. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent, and agree that OSMF may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) provide certain customized features of the OSMF Site to you, if any, or respond if you contact OSMF for any reason; or (e) protect the rights, property, or personal safety of OSMF, the users, and the public.

    Password

    If you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify OSMF. You may be liable for the losses incurred by OSMF or others due to any unauthorized use of your account.

    Dealings with Advertisers

    Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the OSMF Site are solely between you and such advertiser. YOU AGREE THAT OSMF WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE OSMF SITE.

    Links and Third Party Websites

    OSMF or third parties may provide links on the OSMF Site to other sites including the content therein (“Reference Sites”). OSMF has no control over such Reference Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or content linked to by the OSMF Site. OSMF provides links to you only as a convenience, and the inclusion of any link on the OSMF Site does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the OSMF Site. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.

    Availability of Service

    OSMF may make changes to or discontinue any of the media, web communities, products, or services available within the OSMF Site at any time, and without notice. The media, products, or services on the OSMF Site may be out of date, and OSMF makes no commitment to update these materials on the OSMF Site.

    User Disagreements

    You are solely responsible for your involvement with other users of the OSMF Site. OSMF reserves the right, but has no obligation, to monitor disagreements between you and other users. OSMF DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT

    Terms of Use Violations; Termination

    OSMF

    You agree that OSMF, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the OSMF Site or your use of the OSMF Site, and remove and discard all or any part of your account or any User Submission, at any time. You agree that your access to the OSMF Site or any account you may have or portion thereof may be terminated without prior notice, and you agree that OSMF shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies OSMF may have at law or in equity.

    User

    If you are dissatisfied with the OSMF Site, please let us know at info@openstreetmap.org. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the OSMF Site, (ii) any term of these Terms, (iii) any policy or practice of OSMF in operating the OSMF Site, or (iv) any content or information transmitted through the OSMF Site, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account and discontinuing your use of any and all parts of the OSMF Site and providing notice of termination at info@openstreetmap.org.

    Indemnification; Hold Harmless

    You agree to indemnify and hold harmless OSMF, and its parent, subsidiaries, affiliates or any related ORGANIZATIONS (including those which share substantially common ownership), and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs, debt, and expenses (including attorney’s fees) arising out of (i) your use or misuse of the OSMF Site; (ii) your User Submissions, including OSMF’s use, display or other exercise of its license rights granted herein OR OTHERWISE with respect to your User Submissions; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; (v) your breach of the foregoing representations, warranties, and covenants; and (vi) any unauthorized use of your account not caused by OSMF. OSMF 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 OSMF. OSMF will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

    Disclaimers; No Warranties

    Acknowledgement

    YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, THE TERM OSMF INCLUDES OSMF’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES, AND SUBCONTRACTORS.

    No warranties

    TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OSMF DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OSMF OR THROUGH THE OSMF SITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

    “As is” and “As available” and “With All Faults.”

    YOU EXPRESSLY AGREE THAT THE USE OF THE OSMF SITE IS AT YOUR SOLE RISK. THE OSMF SITE, USER SUBMISSIONS, NON-OSMF CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OSMF SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

    Website Operation and Non-OSMF Content

    OSMF DOES NOT WARRANT THAT THE OSMF MATERIALS, USER SUBMISSIONS, NON-OSMF CONTENT, OSMF SITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE OSMF SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

    Accuracy

    OSMF DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE OSMF SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

    Harm to Your Computer

    YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE OSMF SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

    Limitation of Liability and Damages

    Limitation of Liability

    UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL OSMF OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE OSMF MATERIALS AND USER SUBMISSIONS ON THE OSMF SITE OR ANY REFERENCE SITES, THE OSMF SITE ITSELF, OR ANY OTHER INTERACTIONS WITH OSMF, EVEN IF OSMF OR A OSMF AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    Limitation of Damages

    IN NO EVENT SHALL OSMF OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE OSMF SITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100 USD) OR FEES PAID IN THE PRECEDING TWELVE (12) MONTHS.

    Reference Sites

    THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN OSMF AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE OSMF SITE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.

    Limitations by Applicable Law; Basis of the Bargain

    Limitations by Applicable Law

    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 THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

    Basis of the Bargain

    YOU ACKNOWLEDGE AND AGREE THAT OSMF HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND OSMF, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND OSMF. YOU ACKNOWLEDGE AND AGREE THAT OSMF WOULD NOT BE ABLE TO PROVIDE THE OSMF SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

    Digital Millennium Copyright Act

    Notification of Infringement

    It is OSMF’s policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). In addition, we will promptly terminate without notice the accounts of those determined by us to be "repeat infringers". If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-OSMF Content infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) or consult your own legal counsel to confirm these requirements).

    • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the OSMF Site are covered by a single notification, a representative list of such works from the OSMF Site;
    • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit OSMF to locate the material;
    • Information reasonably sufficient to permit OSMF to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
    • 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
    • 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.

    Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

    You may submit your notification of alleged copyright infringement to our Designated Copyright Agent indicated below.

    Counter Notification

    If you elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):

    A physical or electronic signature of the subscriber.
    Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
    A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
    The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which OSMF may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

    Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

    You may submit your counter notifications to alleged copyright infringement to our Designated Copyright Agent indicated below.

    Designated Copyright Agent. OSMF’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:

    ________________________________, email: ___________________, telephone: _______________, fax: _______________.

    Miscellaneous

    Notice

    OSMF may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the OSMF Site. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless OSMF is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide OSMF with notices only by mail to the address indicated in subsection l below.

    Governing Law

    These Terms shall be governed by and construed in accordance with English law, without giving effect to any principles of conflicts of law.

    Jurisdiction

    You agree that any action at law or in equity arising out of or relating to these Terms or the OSMF Site shall be filed only in the state or federal courts in and for Santa Clara County, California [DISCUSS] and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.

    Waiver

    A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of OSMF to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

    Severability

    If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

    Assignment

    The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OSMF without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

    Independent Contractor

    You agree that no joint venture, partnership, employment, or agency relationship exists between you and OSMF as a result of these Terms or use of the OSMF Site. You further acknowledge that by submitting User Submissions or other Non-OSMF Content, no confidential, fiduciary, contractually implied or other relationship is created between you and OSMF other than pursuant to these Terms.

    Survival

    Sections 5, 7, 17, 19, 20, 21, 22, 23 and 24 will survive any termination of these Terms or your account whether by you or OSMF.

    Headings

    The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

    Entire Agreement

    This is the entire agreement between you and OSMF relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by OSMF as set forth in Section 3 above.

    Claims

    YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE OSMF SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

    Disclosures

    The services hereunder are offered by OSMF, located at ______________________________________, telephone: ________________________.

    Last Updated: June 20, 2009