October 10, 2008

Notification of Infringement

It is InSTEDD and Tracker's policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. 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 you believe that any content on the Tracker Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Tracker's Designated Copyright Agent with the following information in writing (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):

1. Eligibility.

The Tracker Service is not available to persons under the age of 18 or to any users previously suspended or removed from the Tracker Service by Tracker or InSTEDD. BY USING THE TRACKER SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE TRACKER SERVICE. IF YOU ARE USING THE TRACKER SERVICE ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY,  "ORGANIZATION") THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS; (II) HAVE READ THE FOREGOING TERMS; (III) UNDERSTAND THESE TERMS, AND (IV) AGREE TO THESE TERMS ON BEHALF OF SUCH ORGANIZATION.

2. Incorporation by Reference.

Your privacy is important to Tracker and InSTEDD. Tracker’s Privacy Policy is hereby incorporated into these Terms by reference. Please read this policy carefully for information relating to Tracker’s collection, use, and disclosure of your personal information.
In the case of any inconsistency between these Terms and any other document that has been incorporated by reference herein, these Terms shall control.

3. Individual Features and Services.

When using the Tracker Service, You will be subject to any additional posted policies, guidelines or rules applicable to specific services and features which may be posted from time to time (the "Policies"). All such Policies are hereby incorporated by reference into these Terms.

4. Modification of these Terms.

Tracker and InSTEDD reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Tracker Service. Please check these Terms and any Policies periodically for changes. Your continued use of the Tracker Service after the posting of changes constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms will automatically be effective thirty (30) days after they are initially posted on the Tracker Service.

5. Digital Millennium Copyright Act.

It is InSTEDD and Tracker’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Tracker’s DMCA Notification Guidelines. Tracker reserves the right to terminate without notice any User's access to the Tracker Service if that User is determined by Tracker to be a "repeat infringer." In addition, Tracker accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

6. Tracker Service License Grant.

6.1 License Grant to Tracker Service.
Subject to Your compliance with the terms and conditions set out in these Terms, Tracker hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Tracker Service for your own personal, noncommercial use.
6.2 Reservation of Rights.
Tracker reserves all rights not expressly granted in these Terms.
6.3 Prevention of Unauthorized Use.
Tracker reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Tracker Service, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.

7. Submissions to Tracker.

The Tracker Service does not currently allow users to upload their content. If you submit any content to Tracker, you acknowledge and agree that Tracker shall have no obligation to keep such information confidential. Do not send to Tracker or otherwise provide to Tracker confidential or proprietary materials.
7.1 Limited License Grant to Tracker.
If Tracker, in its sole discretion, elects to use any submitted content (the “Submissions”), it shall be subject to the following license grant. By distributing or disseminating Submissions to Tracker, You hereby grant to Tracker a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit Your Submissions (and any copyrights, publicity, database and other proprietary rights therein), in any media formats and through any media channels. You acknowledge that the foregoing license shall survive any termination of these Terms or your account with Tracker.
7.2 Limited License Grant to Users.
You hereby grant to each User that is authorized to access Your Submissions a limited, royalty-free, paid-up, non-exclusive, personal license to access and use such Submission in the manner contemplated by these Terms and the Tracker Service.
7.3 Submissions Representations and Warranties.
You are solely responsible for Your Submissions and the consequences of posting or publishing them. By uploading and publishing Your Submissions, You affirm, represent, and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Tracker, its successors, agents, licensors, licensees and Users to use and distribute Your Submissions as necessary to exercise the licenses granted by You in Section 7 and in the manner contemplated by Tracker and these Terms; (2) Your Submissions 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 or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (3) Your Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Tracker Service. Violators of these third-party rights may be subject to criminal and civil liability. Tracker reserves all rights and remedies against any Users who violate these Terms.
7.4 Submissions and Third Party Content Disclaimer.
You understand that when using the Tracker Service You will may be exposed to Submissions or other content from a variety of sources, and that Tracker is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Submissions and other content. You further understand and acknowledge that You may be exposed to Submissions and other content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against Tracker with respect thereto. Tracker does not endorse any Submissions and other content or any opinion, recommendation or advice expressed therein, and Tracker expressly disclaims any and all liability in connection with Submissions and other content. If notified by a User or a content owner of a Submission or other content that allegedly does not conform to these Terms, Tracker may investigate the allegation and determine in its sole discretion whether to remove the Submission or other content, which it reserves the right to do at any time and without notice. For clarity, Tracker does not permit copyright infringing activities on the Tracker Service.

8. Prohibited Conduct.

BY USING THE TRACKER SERVICE YOU AGREE NOT TO:
8.1 use the Tracker Service for any purposes other than (i) to disseminate or receive original or appropriately licensed content, or (ii) to access the Tracker Service as such services are offered by Tracker;
8.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 14, below);
8.3 submit Submissions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
8.4 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Tracker Service accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the Tracker Service, or perform any other similar fraudulent activity;
8.5 delete indications or notices regarding the copyright or other proprietary rights on the Tracker Service any third party content;
8.6 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Tracker Service. 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;
8.7 use the Tracker Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
8.8 defame, harass, abuse, threaten or defraud Users of the Tracker Service, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the Tracker Service for any commercial use, it being understood that the content available on the Tracker Service is for personal, non-commercial use only;
8.9 use the Tracker Service if You are under the age of eighteen (18) years old;
8.10 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Tracker Service or Submissions or third party content, features that prevent or restrict use or copying of any content accessible through the Tracker Service, or features that enforce limitations on the use of the Tracker Service;
8.11 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Tracker Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.12 modify, adapt, translate or create derivative works based upon the Tracker Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.13 intentionally interfere with or damage operation of the Tracker Service or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
8.14 interfere or attempt to interfere with the proper workings of the Tracker Service or any activities conducted on the Tracker Service; or,
8.15 bypass robot exclusion headers or other measures Tracker may use to prevent unauthorized access to the Tracker Service.

9. Third-Party Sites, Products and Services; Links.

The Tracker Service may include links or references to other web sites or services solely as a convenience to Users ("Reference Sites"). Tracker does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Tracker Service are solely between You and such third party. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at Your own risk.

10. Termination; Terms of Service Violations.

10.1 Tracker.
You agree that Tracker, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Tracker or Your use of the Tracker Service, and any Submission, at any time. Tracker may also in its sole discretion and at any time discontinue providing access to the Tracker Service, or any part thereof, with or without notice. You agree that any termination of Your access to the Tracker Service or any account You may have or portion thereof may be effected without prior notice, and You agree that Tracker will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Tracker may have at law or in equity. As discussed herein, Tracker does not permit copyright infringing activities on the Tracker Service, and shall be permitted to terminate access to the Tracker Service, and remove all Submissions or other content submitted by any Users who are found to be repeat infringers.
10.2 You.
Your only remedy with respect to any dissatisfaction with (i) the Tracker Service, (ii) any term of these Terms, (iii) any policy or practice of Tracker in operating the Tracker Service, or (iv) any content or information transmitted through the Tracker Service, is to terminate these Terms. You may terminate these Terms at any time by discontinuing use of any and all parts of the Tracker Service and sending a written notice to Tracker at the address below.

11. Ownership; Proprietary Rights.

The Tracker Service is owned and operated by InSTEDD, Inc. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, and all other elements of the Tracker Service provided by Tracker (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Submissions that are provided and owned by Users, and content from third party sites, including images, all Materials contained on the Tracker Service are the property of Tracker or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Tracker or its affiliates and/or third-party licensors. Except as expressly authorized by Tracker, 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 Materials. Tracker reserves all rights not expressly granted in these Terms.

12. Indemnification.

You agree to indemnify, save, and hold Tracker, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Tracker Service, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. Tracker reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Tracker, and You agree to cooperate with Tracker defense of these claims. Tracker will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

13. Disclaimers; No Warranties.

13.1 No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Tracker, AND ITS AFFILIATES, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRACKER OR THROUGH THE TRACKER SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 13, THE TERM TRACKER INCLUDES TRACKER’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
13.2 "As is" and "As available" and "With All Faults".
YOU EXPRESSLY AGREE THAT THE USE OF THE TRACKER SERVICE IS AT YOUR SOLE RISK. THE TRACKER SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY CONTENT, SUBMISSIONS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE TRACKER SERVICE 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.
13.3 Platform Operation and Content.
TRACKER, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, SUBMISSIONS, THIRD PARTY CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE TRACKER SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
13.4 Accuracy.
TRACKER, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE TRACKER SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
13.5 Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE TRACKER SERVICE (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 USE OF SUCH MATERIAL OR DATA.

14. Limitation of Liability and Damages.

14.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL TRACKER OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS (INCLUDING THIRD PARTY CONTENT) ON THE TRACKER SERVICE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH TRACKER, EVEN IF TRACKER OR A TRACKER AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages.
IN NO EVENT WILL TRACKER OR ITS SUCCESSORS, 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 TRACKER SERVICE OR YOUR INTERACTION WITH OTHER TRACKER SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE ONE HUNDRED DOLLARS.
14.4 Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN TRACKER AND RECEIVED THROUGH THE TRACKER SERVICE OR RECEIVED THROUGH ANY REFERENCE SITES.
14.5 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT TRACKER HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, 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 TRACKER, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TRACKER. TRACKER WOULD NOT BE ABLE TO PROVIDE THE TRACKER SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.6 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS 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 WHERE YOU ARE LOCATED.

15. United States Export Controls.

You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by You that You will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on Your compliance with this provision.

16. Miscellaneous.

16.1 Notice.
Tracker may provide You with notices, including those regarding changes to Tracker’s terms and conditions, by email, regular mail or postings on the Tracker Service. Notice will be deemed given twenty-four hours after email is sent, unless Tracker is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Tracker Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Tracker Service is deemed given 30 days following the initial posting.
16.2 Waiver.
The failure of Tracker to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Tracker.
16.3 Governing Law; Jurisdiction
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The parties agree that the federal and state courts residing in the State of California will have exclusive jurisdiction over these Terms.
16.4 No Third Party Beneficiary
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.
16.5 Severability.
If any provision of these Terms or any Policies is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
16.6 Assignment.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Tracker without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
16.7 Survival.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
16.8 Headings.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
16.9 Entire Agreement.
This is the entire agreement between You and Tracker relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by Tracker as set forth in Section 4 above.
16.10 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
16.11 Disclosures.

The services are offered by Tracker, owned and operated by InSTEDD, an independent and international nonprofit corporation incorporated in California, USA, and located at 400 Hamilton Avenue, Suite 120, Palo Alto, CA 94301 USA. Any feedback, questions or technical assistance about the Tracker Service may be sent by email to: support@trackernews.net.  Questions or concerns about the Terms of Service may be sent by email to: service@trackernews.net.