Terms of Services
Last Updated: June 16, 2010
Welcome to UTYP.net, operated by nThinking Ltd., ("UTYP", "we" or "us"). By using the services offered on or through www.UTYP.net (the "UTYP Site") you are agreeing to the terms and conditions set forth below (the "Terms of Service" or "TOS"). We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms of Service at any time. You can always check out the most current version of these Terms of Service at this page. You can determine when these Terms of Service was last revised by referring to the "Last Updated" legend at the top of these Terms of Service.
If you do not understand and agree to these Terms of Service, please do not use the UTYP Site or any Services (as defined below), and do not register to be a member of UTYP. If you have any questions or concerns regarding these Terms of Service, please let us know by contacting us here. Do not use the Services until these questions and concerns have been answered to your satisfaction, and you agree to abide by the terms and conditions of these Terms of Service.
The UTYP Site offers a multi-purpose service, with both basic (free) and Plus (paid subscription) membership options, which allows you to, among other things, upload and share both high- and standard-definition picture footage; send messages to other members; post comments about pictures, add other members as contacts; create and moderate "channels" and "groups" based around specific interests, and participate in Forums (as more fully described below) (collectively, and together with the Site, the "Services"). Services may be offered by UTYP itself, or by a third party partner/service provider. Certain Services may only be available to Plus subscribers. Unless otherwise stated, these Terms of Service apply to all Services. All content and additional or replacement services made available through the UTYP Site that were not made available as of the "Last Updated" date above shall automatically be deemed to be part of the "Services" when first made available through the UTYP Site.
Use of the Services; Eligibility; Grant of Limited License
You may access the UTYP Site and use the Services for non-commercial purposes only. Use of the Services is void where prohibited. By accessing or otherwise using the UTYP Site and/or Services, you are acknowledging and agreeing, and representing and warranting that (i) you have read, understand, and agree to be legally bound and to abide by these Terms of Service, just as if you had signed a written agreement; (ii) you have the right, authority and capacity to enter into this agreement and to abide by all the terms and conditions of these Terms of Service; and (iii) if you are acting on the behalf of any person or entity, you are authorized to act on behalf of such party.
You must be an individual of 15 years of age or older to register or use the Services. If you are not yet 15 years old, do not use the Services. Notwithstanding anything to the contrary herein, to access, subscribe to, download, view and/or otherwise use the UTYP Site or Services for any "R Rated" material, you must be at least eighteen (18) years of age, and by accessing, subscribing, downloading, viewing and/or otherwise accessing such "R Rated" portion(s) of the UTYP Site, you certify that you are at least eighteen (18) years of age.
If you are at least 15 but not yet 18 years of age: Please have your parents or legal guardian review these Terms of Service with you, discuss any questions you might have, and give you their permission to register and use the Services with both your and their full understanding of these Terms of Service. By using the Services, you are telling us that you and your parent or guardian have joined in this agreement.
If you are a parent or guardian: Parents and guardians are advised to exercise supervision over their children's on-line activities. If you do not agree to these Terms of Service, do not let your child use the Services. If you have any further questions about our Services please take a look at our Frequently Asked Questions or contact us at. If you are the parent or guardian of a child under 15 and believe that he or she is using the Services, please contact us.
Notice to parents/guardians: Portions of the UTYP Site include user-generated-content, some of which contains "R-rated" material which may comprise nudity, violence or mature subject matter. UTYP assumes no responsibility for filtering or monitoring the content viewed by its members; accordingly minor members' parents or guardians shall be solely responsible for filtering and/or monitoring their child's use of the UTYP Site and/or Services.
We reserve the right, at any time, to: (a) modify or discontinue some or all of the Services, including, but not limited to (i) restricting the time the Services are available, (ii) restricting the amount of use of the Services permitted (which may vary depending on membership level), and (iii) restricting or terminating any user's right to use the Services, with or without notice; (b) charge fees in connection with the use of all or part of the Services; (c) modify and/or waive any fees charged in connection with the Services; and/or (d) offer opportunities to some or all users of the Services. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Services, in whole or in part, or of any service, content or feature offered through the Services. Your continued use of the Services following the posting of changes to these TOS will constitute your acceptance of such changes.
Subject to the above, the terms and conditions set forth herein, and any applicable third party restrictions, UTYP grants you a revocable, non-transferable, non-exclusive and non-sublicensable limited right and license to view, use and access the Services to (a) incidentally view, print and download the images, text, graphics, photographs, audio, picture and other content to the extent made available by UTYP for such purposes on the UTYP Site, solely for your informational purposes and for your immediate, private and non-commercial use; and (b) make purchases of goods and services through links found on or through the Services. At all times you must retain all UTYP or third party copyright and proprietary notices contained in the original materials or any copies thereof. All rights to ownership or use not expressly stated herein are reserved by nThinking, (HK) LTD and nThinking, (HK) LTD disclaims any and all implied licenses.
Registration – Basic/Plus Membership; Refund Policy
In order to use certain Services, you must become a registered user of the UTYP Site. You agree that UTYP Site user names may be refused, changed, removed or replaced by us for reasons including, but not limited to, using a user name to impersonate another person, if a user name is offensive or violates third party intellectual property, etc . Please note that your user name may be viewed by the public, so you should not choose a user name that personally identifies you.
If you elect to register to use the Services (whether as a basic member, or as a paid subscriber to UTYP Plus), utilize the UTYP Site and/or participate in any UTYP promotions, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the UTYP registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it accurate. If you provide any information that is untrue, inaccurate, or incomplete, or UTYP has reasonable grounds to suspect that such is the case, UTYP has the right to suspend or terminate your account (including paid, membership accounts) and refuse any and all current or future use of the UTYP Site and/or Services (or any portion thereof).
In addition to any other Registration Data, to register on the UTYP Site you will be required to choose a password. You are solely responsible for maintaining the confidentiality of any password you may use to access the Services, and agree not to transfer your user name or password, or lend or otherwise transfer your use of or access to the Services, to any third party. You are fully responsible for all activity that occurs in connection with your user name or password. You agree to immediately notify us of any unauthorized use of your user name or password or any other breach of security related to your account or the Services, and to ensure that you "log off"/exit from your account (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
At any time you may elect to become a "Plus" member of the UTYP Site by subscribing to UTYP Plus and paying the associated subscription fee(s). UTYP Plus members have greater storage and bandwidth allocations, and may have access to more areas, functions and types of Services than basic members. For an in depth description of the UTYP Plus-specific services and benefits, as well as current pricing and subscription offerings, click here.
UTYP Plus subscriptions may be subject to certain state, local or other relevant taxes. Annual subscribers to UTYP Plus (as well as subscribers to multi-month subscriptions, should we make such subscription terms available) shall have thirty (30) days from the date of subscription to cancel their subscription for a full refund. If monthly subscriptions are offered, monthly subscribers to UTYP Plus shall have five (5) days from the date of subscription to cancel their subscription for a full refund. After the cancellation period, purchases of UTYP Plus subscriptions become FINAL and non-refundable, except in our sole and absolute discretion. At that point, you cannot return or cancel your subscription for a refund, and if your account is cancelled or terminated by you or by us, for any reason, you will lose and forfeit the remaining time on your subscription. The default setting for subscriptions is an annual, auto-renewing subscription. This means that each year on your subscription anniversary date, you will be charged the prevailing rate for an additional one-year subscription renewal. We may also offer shorter or longer term subscriptions (including monthly; multi-month – e.g., 3-month or 6-months at a time; or multi-year), which will also default to auto-renew. If you have signed up for an automatically-renewing subscription, you will have the ability to cancel any future renewals. If you have questions, feel free to contact subscriptions@UTYP.net.
When you register for a UTYP Site account, a profile page will automatically be created for you and certain Registration Data will automatically be pre-populated in your profile page, including user name, profile image, the date you registered as a UTYP Site user, and your gender. You may choose to add information (such as interests, personal description and location) to or delete certain information from your profile page, but your user name and the date you registered as a UTYP Site user are required information for your profile page. Your profile page will also automatically display activity and any materials you have uploaded or otherwise submitted via the Services and marked "Public". Please note that your profile page (including any comments that may have been left for you) may be viewed by other users, so you should not include any information in your profile page that you do not want others to see.
Material Storage and Delivery; Termination of Inactive Accounts
The amount of storage space and bandwidth per member may be limited (and may differ between basic members and Plus subscribers). The amount of storage space and bandwidth allocated to Plus subscribers, however, shall not be reduced during a subscriber's then current subscription term. UTYP may change the amount of storage space and/or bandwidth allocated to members from time-to-time, in its discretion.
Basic accounts may be terminated and/or deleted from our system if they remain inactive for a period of ninety (90) or more days; Plus accounts will remain active until the end of the subscription term. In the event of a suspension or deletion of an account (whether basic or Plus), materials (whether pictures, still images, Forum posts, submissions or other communications) may no longer be accessible.
Accounts may be archived, or materials may be purged at such time intervals as UTYP or its third party service provider(s) determine in their sole discretion. Some materials may not be stored, served or processed due to space constraints, serving/bandwidth limitations or disruptions in the system(s). You agree that UTYP is not responsible or liable for the deletion or failure to store, serve or process any materials or other information.
Channels, Groups, Forums & Comments
UTYP offers users the ability to create "channels" or "groups" focused on a particular area of interest, and also offers access to Forums as part of the Services. A "Forum" refers to a bulletin board, virtual community or other means for users to engage in public commentary or discussion, which may be found in various areas of the UTYP Site, including within channels and groups. You may make "comments" throughout the UTYP Site, sharing your opinions about others' content or send messages to individual users, as applicable. Channels, groups, comments and Forums are offered for, non-commercial use only. You shall not, without UTYP's express written approval, distribute or otherwise publish via any of the Services any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services.
As with all Services, your privilege to create channels and groups, make comments and to participate in the Forums is dependent on your continued compliance with these Terms of Service, specifically including the COMMUNITY STANDARDS AND CONDUCT policy below. UTYP may revoke your privileges, terminate your registration/account or take any other measures deemed by UTYP to be appropriate, in its sole discretion, to enforce these Terms of Service if violations are brought to our attention. You agree that UTYP may change, remove or replace any channel or group name for any reason. We may refuse to grant you, and you may not use, a UTYP channel or group name that is already being used by someone else; that may be construed as impersonating a company or another person; that belongs to a company or another person; that violates the intellectual property or other rights of any entity or person; that is offensive; or that we reject for any other reason. Please note that channel and group names may be viewed by the public, so you should not choose a channel or group name that personally identifies you.
A NOTE ABOUT COMMUNICATION PRIVACY: You should consider all communications to be public and not private communications. Although UTYP reserves the right to remove without notice any Forum posting for any reason, we have no obligation to delete content that you may find objectionable or offensive.
pictures that you upload or otherwise transmit to UTYP through the Services shall at all times remain your sole and exclusive property. As such, you shall be solely responsible for your pictures and the consequences of their posting or publication on or via the Services. picture uploads, like any Submissions (as defined below), are subject to UTYP's COMMUNITY STANDARDS AND CONDUCT policy below.
By submitting your picture(s), you hereby grant UTYP and its affiliates, successors and assigns a worldwide, non-exclusive, royalty-free, sub-licensable (through multiple tiers) and transferable license (with a right to create derivative works to the extent necessary to make picture content compatible with any UTYP Services), revocable upon removing the picture from UTYP, to use, copy, transmit or otherwise distribute, perform, modify, incorporate into other works, publicly perform and display your pictures or any portion thereof, in or through any medium, whether now known or hereafter created. UTYP shall also be entitled to use clips of any picture that has not been designated "private" for the purpose of promoting the UTYP Site or Services, without compensation to the submitter; however, UTYP will not use your pictures for any other commercial purposes without obtaining your prior approval.
You also grant each user (or specified users, if a picture is designated "private") of the UTYP Site or Services a limited, non-exclusive, non-transferable, personal and non-commercial license to access and view your picture through the UTYP Site or any other access point authorized by you and/or UTYP. This right to access and view your picture shall include, solely to the extent necessary, the right to copy, transmit or otherwise distribute, perform, publicly perform, create derivative works of, and display your picture. Unless designated "private," all picture uploads will be deemed public information. No picture upload shall be subject to any obligation of confidence on the part of UTYP, and UTYP shall not be liable for any use or disclosure of any picture.
When you remove or otherwise delete a picture from the Services, the licenses granted by you to UTYP and the UTYP Site users shall terminate within a commercially reasonable time. You understand and agree, however, that UTYP may retain (but not display, distribute, or perform) server copies of pictures that have been removed or deleted, and that UTYP shall have no obligation to attempt to remove from distribution any of your pictures that are otherwise publicly available through the Internet or other publicly accessible medium.
If you are looking for further information regarding UTYP's upload policies, please see UTYP's Uploading Guidelines here. Note – these Guidelines are provided for guidance purposes only. All uploads are governed by these Terms of Service.
Non-picture Submissions and Correspondence With UTYP (This Section does not apply to picture uploads discussed above)
Except as otherwise provided herein, any and all comments, suggestions, ideas, graphics, content, data and other information that you transmit to UTYP through the Services (each, a "Submission") shall remain your sole and exclusive property, and you shall be solely responsible for your Submission and the consequences of posting or publishing it. All Submissions are subject to UTYP's COMMUNITY STANDARDS AND CONDUCT policy below.
By submitting your Submission to UTYP, you hereby grant UTYP and its affiliates, successors and assigns a worldwide, non-exclusive, royalty-free, sub-licensable (through multiple tiers) and transferable license (with a right to create derivative works), to use, copy, transmit or otherwise distribute, perform, modify, adapt, incorporate into other works, publicly perform and display your Submission or any portion thereof, in or through any medium, whether now known or hereafter created. In addition, you waive any and all so-called "moral rights" in Submissions. UTYP shall be entitled to use all or a portion of any Submission without compensation to the submitter. The licenses granted by you herein with respect to non-picture Submissions are perpetual and irrevocable.
You also grant each user of the UTYP Site and Services a non-exclusive license to access your Submission through the UTYP Site or any other access point authorized by UTYP, and to use, copy, transmit or otherwise distribute, perform, publicly perform, create derivative works of, and display your Submission to the extent expressly authorized by UTYP on the UTYP Site and/or in this TOS. None of the Submissions shall be subject to any obligation of confidence on the part of UTYP, and UTYP shall not be liable for any use or disclosure of any Submissions.
UTYP.net Community Standards and Conduct Policy
You agree that you are entirely responsible for any Submission that you post, email or otherwise transmit to or via the UTYP Site or Services, whether publicly posted or privately transmitted.
You agree to not use the UTYP Services (including, without limitation, the UTYP Site and the Forums) to:
- upload, post, email or otherwise transmit any Submission that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, an UTYP official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Submission transmitted through the Service;
- solicit other users of the UTYP Site to join or become members of any online or other service;
- upload, post, email or otherwise transmit any Submission that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email or otherwise transmit any Submission that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
- upload, post, email or otherwise transmit any material 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;
- disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks or third party providers connected to, or providing the Services;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- "stalk" or otherwise harass another member or user of the Services; or
- collect or store personal data about other users, or members.
Waiver; Representations & Warranties
By uploading or otherwise submitting a picture or Submission, you waive the right to make any claim against nThinking, (HK) LTD or any of its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders related to the picture or Submission, including, but not limited to, unfair competition, intellectual property infringement, invasion of privacy, negligence, breach of implied contract or breach of confidentiality, and you further waive all moral rights, so-called "droits morales" and any right of attribution you may have in any materials uploaded or sent to us by you.
You represent and warrant that your picture or Submission: (a) shall be true, accurate, current, complete and not misleading, (b) shall not violate the rights of any third party, including, but not limited to, intellectual property and proprietary rights, (c) shall not be fraudulent or involve counterfeit or stolen information or items, (d) shall not violate any law, statute, ordinance or regulation, and (e) shall not create any liability for nThinking, (HK) LTD or any of its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders. You also agree to maintain and promptly update your picture or Submission by means of the Services in order to keep that information true, accurate, current and complete, as necessary.
You further represent and warrant that (i) you own or have the necessary licenses, rights, consents and permissions to use and authorize UTYP to use all patent, trademark, trade secret, copyright or other proprietary rights in and to your picture or Submission to enable inclusion and use of the picture or Submission in the manner contemplated by this TOS; and (ii) you have any and all necessary written or implied consents, releases, and/or permissions of each and every identifiable individual person in the picture or Submission to use the name, picture and likeness of each and every such identifiable individual person to enable inclusion and use of the picture or Submission in the manner contemplated by these Terms of Service.
Notice: User-Generated-Content Disclaimer; Option to Review/Remove
UTYP does not and cannot review all pictures or Submissions posted to or created by users accessing the Services (including, but not limited to, the UTYP Site), and is not in any manner responsible for the content of these pictures, communications, comments or Forum postings, or the activities of UTYP.net users.
You acknowledge that by providing you with the ability to view and distribute user-generated-content through the Services (including, but not limited to, the UTYP Site), UTYP is merely acting as a passive conduit for the distribution of such information, and is not undertaking any obligation or liability relating to the content or the users' activities. Accordingly, UTYP does not guarantee the accuracy, integrity, completeness, non-infringement or quality of such content. UTYP and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders do not undertake or assume any duty to monitor the UTYP Site for inappropriate content. You understand that by using the UTYP Site or Services, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will UTYP be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted on or via the UTYP Site or Services. UTYP and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders assume no responsibility or liability which may arise from the content thereof, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation.
Notwithstanding the foregoing, UTYP reserves the right to (i) monitor some, all, or no areas of the channels, groups, comments and Forums for adherence to these or other rules that may be published from time to time; and (ii) block or remove pictures, comments, Forum postings, Submissions or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading; (c) in violation of a copyright, trademark, patent, trade secret, intellectual property or other rights of another or (d) offensive or otherwise unacceptable to UTYP, in its sole discretion.
UTYP.net 18 U.S.C. §2257 Compliance Notice
All pictures, graphics, videos or other visual media displayed on the UTYP Site are exempt from the provision of 18 U.S.C. section 2257 and 28 C.F.R. 75 because said visual media do not consist of depictions of conduct as specifically listed in 18 U.S.C. section 2256 (2) (A) through (D), but are merely depictions of non-sexually explicit nudity, or are depictions of simulated sexual conduct, or are otherwise exempt because the visual depictions were created prior to July 3, 1995.
The owners and operators of the UTYP Site and Services are not the primary producer (as that term is defined in 18 U.S.C. section 2257 or subsequent case law defining such) of any of the visual content contained in the UTYP Site.
Links/External Sites and Resources
UTYP and its service providers utilize diligent efforts to maintain the Services, but UTYP and its service providers are not responsible for any defects or failures associated with the Services, including, without limitation, the email service, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures.
Please Note the Following Important Disclaimers of Warranties:
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOU USE THEM AT YOUR SOLE RISK. UTYP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING UNDER THE UNIFORM COMMERCIAL CODE, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE.
WITHOUT LIMITATION, UTYP MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING EMAILS, SUBMISSIONS, CONTENT OR OTHER MATERIALS OR COMMUNICATIONS SENT VIA THE SERVICES, IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION OBTAINED BY YOU FROM UTYP PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UTYP SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UTYP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE UTYP SITE OR SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES OR OPERATION OF THE UTYP SITE. IN NO EVENT SHALL UTYP'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE UTYP SITE.
You acknowledge and agree that UTYP and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders shall not be responsible or liable for (i) any unauthorized access to or alteration of your Submission; (ii) any Submission sent or received or not sent or received and (iii) any Submission stored on storage devices owned, operated or controlled by UTYP. You acknowledge and agree that UTYP and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders shall not be responsible or liable for any Submission or conduct of any third party, including, but not limited to, content sent using and/or included within the Services provided by any other user of the UTYP Site or any third party licensors or suppliers of UTYP.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND ACCOUNT. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES WHICH OCCUR UNDER YOUR ACCOUNT. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS NTHINKING, (HK) LTD, ITS PARENTS, AFFILIATES AND SUBSIDIARY COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES) ARISING FROM YOUR USE OF THE UTYP SITE OR SERVICES, YOUR VIOLATION OF THESE TERMS OF SERVICE OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY UTYP OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
Termination and Modification
In addition to any other rights or remedies available to it, UTYP reserves the right to immediately suspend, terminate, access and investigate the user account of any user upon receipt of a subpoena or law enforcement request, or when UTYP believes, in its sole discretion, that a user is transmitting or is otherwise connected with the distribution of unsolicited bulk email messages (SPAM) or any harassing email messages or Forum posts, or with any fraudulent, misleading, illegal or otherwise objectionable activities. Because of the difficulty associated with quantifying damages, if actual damages cannot be reasonably calculated then you agree to pay UTYP liquidated damages of $5 for each piece of unsolicited bulk email transmitted from or otherwise connected with your account or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay UTYP's actual damages, to the extent such actual damages can be reasonably calculated.
You agree that UTYP, in its sole and absolute discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any Submission(s) or other content within the Services, for any reason, including, without limitation, for lack of use or if UTYP believes that you have violated or acted inconsistently with the letter or spirit of the Terms of Service. UTYP may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that UTYP may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that UTYP shall not be liable to you or any third-party for any termination of your access to the Services.
The provisions of these Terms of Service pertaining to disclaimers, exclusion of damages, limitations of liability and indemnification shall survive termination.
You acknowledge that the UTYP Site and Services contain information, software, photos, picture, text, graphics, music, sounds or other material (collectively, "Content") that are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All UTYP-generated Content and Content provided to UTYP by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, UTYP owns a copyright in the selection, coordination, arrangement and enhancement of all Content and in the UTYP Site as a whole. Subject to your compliance with the TOS, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the materials on any single computer for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms of Service. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other Web site or networked computer environment is strictly prohibited. In the event you download software provided by the UTYP Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you by us. We do not transfer title to the Software to you. Except as otherwise expressly authorized in writing in advance by us, you agree not to reproduce, redistribute, sell, modify, rent, lease, loan, adapt, translate, create derivative works based (whether in whole or in part) on, decompile, reverse engineer, disassemble, or otherwise reduce all or any part of the Services, including the UTYP Site, the Content or the Software.
The UTYP name and logo(s) are the exclusive property of nThinking, (HK) LTD. or its affiliates. All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Third Party Intellectual Property; Copyright Notifications
UTYP respects the intellectual property of others, and we ask our users to do the same. UTYP may, in appropriate circumstances and at its discretion, terminate the accounts of users who infringe the intellectual property rights of others. UTYP will remove infringing materials in accordance with the Digital Millennium Copyright Act if properly notified that content infringes copyright. Our DMCA Notifications and Counter-Notifications process is available here, and is hereby incorporated by reference into these Terms of Service.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide UTYP's Copyright Agent with a written notification containing all of the requisite information.
Similarly, if you believe that your work has been removed or disabled by mistake or misidentification, please provide the UTYP's Copyright Agent with a written counter-notification containing all of the requisite information.
Electronic Delivery/Notice Policy and Your Consent
By using the Services, you consent to receive from UTYP all communications including notices, agreements, legally required disclosures or other information in connection with the Services (collectively, "Contract Notices") electronically. UTYP may provide such electronic Contract Notices by posting them on the UTYP Site. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the UTYP Site and Services.
Governing Law and Other Miscellaneous Terms
These Terms of Service (and any further rules, policies or guidelines incorporated by reference herein) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the UTYP Site (and all Services) is deemed a passive website that does not give rise to personal jurisdiction over UTYP or its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of New York. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Services, shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.
These Terms of Service (and any further policies or documents incorporated by reference herein) constitute the entire understanding between UTYP and users of the UTYP Site and Services concerning the subject matter hereof and may not be modified except by revised Terms of Service posted by UTYP. These Terms of Service, which may be modified or amended by UTYP from time to time, in its sole discretion, supersedes all prior understandings and agreements, whether written or verbal with respect to the subject matter hereof. If any of the provisions of these Terms of Service will contravene, or be invalid under, the laws of the particular jurisdiction where performed, such contravention or invalidity will not invalidate the whole agreement, rather these Terms of Service will be construed as if not containing the particular provision or provisions held invalid, and the rights and obligations of the parties will be construed and enforced accordingly. Notwithstanding the foregoing, the TOS does not modify, alter or amend any other specific agreement you have entered or will enter into with UTYP. To the extent that any provision of the TOS, or any supplemental agreement offered as any part of any registration for additional services on the UTYP Site or within the Services, conflicts with any provision of your other agreements with UTYP, the terms and conditions of such other agreement shall, take precedence over the conflicting term(s) and conditions of this TOS, unless otherwise expressly provided in such other agreement.
No failure or delay by UTYP in exercising any right or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under these Terms of Service. If any provision of these Terms of Service 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.
These Terms of Service are binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. Users may not assign their rights or obligations hereunder without UTYP's prior written consent.
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