Date of last revision: August 29, 2013
THIS IS A LEGALLY BINDING AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND STICKS & STONES. YOU MUST READ THE TERMS AND CONDITIONS OF USE SET OUT BELOW CAREFULLY BEFORE USING THE STICKS & STONES WEBSITE. BY ACCESSING, BROWSING, SUBSCRIBING TO OR OTHERWISE USING THE STICKS & STONES WEBSITE, YOU AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME BY STICKS & STONES. IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, DO NOT USE THE STICKS & STONES WEBSITE.
THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
1. DESCRIPTION OF SERVICE
Mysticksandstones.com is a web-based service (the "Service") provided by Sticks & Stones. (hereafter "Sticks & Stones", "we", "our", "us") that allows its users to create and maintain an online diary or journal and access to the Program eBook software. Once a user has registered with Sticks & Stones, the user receives access to a journal space and eBook where the user can create a private profile and save text in the form of various entries to such journal space. The price for the Sticks & Stones Program is a flat one-time fee of $19.95.
"You", "your" or "User" means an adult user of the Service (as defined herein) acting independently or as parent or guardian for any minor whom you allow to access the Service and for whom you will be held strictly responsible.
By accessing or using the Sticks & Stones website at www.mysticksandstones.com or mysticksandstones.com (the "Site") you agree that you have read, understand and agree to be bound by this Agreement, whether or not you are a registered User of Sticks & Stones.
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice. If we do this, we will post the changes to the Agreement on the Site and will indicate at the top of this page the date the Agreement was last revised. Your continued use of the Service after any such changes constitutes your acceptance of the revised Agreement. If you do not agree to abide by this Agreement or any future revisions, do not use or access (or continue to use or access) the Service. It is your responsibility to regularly check the Site to determine if there have been changes made and to review such changes.
4. MEMBERSHIP, REGISTRATION DATA, ACCOUNT, FEES
Sticks & Stones does not accept membership registrations from users who are under 13 years of age. By registering with Sticks & Stones, you represent that you are at least 13 years old. If you are 13 or older but under the age of 18, you must review this Agreement with your parent or legal guardian to make sure that you and your parent or legal guardian understand the Agreement and agree to be bound hereby.
Upon registration with the Service you may be issued a user name and/or password (collectively, the "Account") in order to access certain sections of the Service and/or certain services available through the Service. In consideration of your use of the Service, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Service ("Registration Data"); (b) maintain the security and confidentiality of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Sticks & Stones, in order to keep it accurate, current and complete; and (d) be fully responsible for all use of your Account and for any actions that take place using your Account.
Users must pay through PayPal and shall be subject to the PayPal User Agreement and Sticks & Stones specifically disclaims all responsibility and liability for the reliability, operability or availability of the PayPal service or for any damages, losses, costs and expenses arising out of a PayPal transaction, including but not limited to the failure to pay a Fee or receive a refund.
You are responsible for all activities that occur through the use of your Account. You agree to: (a) immediately notify Sticks & Stones of any unauthorized use of your Account or any other breach of security; and (b) ensure that you exit from your Account at the end of each session on shared computers. Sticks & Stones will not be liable for any loss or damage arising from your failure to comply with this section. Sticks & Stones may also, in its sole discretion and without liability, issue you a new Account or require you to change your Account from time to time.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Sticks & Stones has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sticks & Stones has the right to deactivate or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof), without liability.
6. OWNERSHIP AND RESPONSIBILITY WITH RESPECT TO USER CONTENT
You are solely responsible for the journal entries, profiles, information, notes, text, and other content (collectively, the "User Content") that you upload, publish, display or transmit to or share with others on or through the Service.
Sticks & Stones does not claim ownership of User Content on the Site. As parent or legal guardian on behalf of minor User Content, you hereby grant, and you represent and warrant that you have the right to grant, to Sticks & Stones an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use such User Content but only to the extent User Content be used for research purposes and anonymously.
You acknowledge and agree that Sticks & Stones may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any User Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Sticks & Stones, its users and the public.
7. GENERAL USER CONDUCT
You acknowledge and agree that the Service is available for your personal, non-commercial use only.
You represent, warrant and agree that no materials of any kind submitted through your Account will violate or infringe the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful material. You agree that you will not use the Service in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Service.
ANY ATTEMPT TO DELIBERATELY DAMAGE THE SERVICE OR ANY RELATED WEBSITE MAY BE A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS. SHOULD SUCH AN ATTEMPT BE MADE, STICKS & STONES RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO CRIMINAL PROSECUTION.
8. TERMINATION AND MODIFICATION
Should you no longer desire to use the Service, you may either deactivate or terminate your Account with Sticks & Stones. You may deactivate your Account from the Account page, however, your User Content and/or personal information may not be deleted by Sticks & Stones. In order to terminate your Account, and permanently remove your User Content and/or personal information, you must contact Sticks & Stones from the e-mail address used to create your Account.
9. PROPRIETARY RIGHTS IN SERVICE CONTENT
You acknowledge and agree that the Service and any software used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including, without limitation, for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Sticks & Stones for use in accessing the Service.
All content on the Service, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the "Service Content"), are the proprietary property of Sticks & Stones, its Users or its licensors with all rights reserved. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, Posted, transmitted or sold in any form or by any means, in whole or in part, without Sticks & Stones prior written permission.
10. LIMITED LICENSE
Provided that you are eligible for use of the Service, you are granted a limited, non-exclusive, non-transferable license to access and use the Service and to print a copy of any portion of the Service Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact (the "License"). Except for your own User Content, you may not republish Service Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Service Content is strictly prohibited.
Such License is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein, without the prior written permission of Sticks & Stones, is strictly prohibited and will terminate the License granted herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by implication or otherwise. The License is revocable at any time without notice and with or without cause.
11. INTELECTUAL PROPERTY
Sticks & Stones and other Service graphics, logos, designs, page headers, button icons, scripts and names may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Sticks & Stones.
12. REPEAT INFRINGER POLICY
In accordance with the DMCA and other applicable law, Sticks & Stones has adopted a policy of terminating, in appropriate circumstances and at Sticks & Stones's sole discretion, Users who are deemed to be repeat infringers.
Sticks & Stones may also at its sole discretion limit access to the Service and/or terminate the Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
13. CONTENT LINKED TO BY STICKS AND STONES
The sites displayed or linked to by Sticks & Stones are developed by third parties over whom Sticks & Stone exercises no control. Sticks & Stones does not screen the sites for content before including them on the Service. Sticks & Stones shall not be responsible for the availability of such external sites or resources, or endorse or be liable for any content, advertising, products, or other materials on or available from such sites or resources.
You further acknowledge and agree that Sticks & Stones shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such linked site or resource. You acknowledge and agree that you may be subject to the terms and conditions and/or privacy policies ("Third Party Terms") associated with such linked sites or resources and Sticks & Stones shall not be responsible or liable for your failure to comply with such Third Party Terms.
14. PARTICIPATION OF ADVERTISERS AND/OR MERCHANTS
You understand and agree that some or all of the Service may include advertisements. You also understand and agree that you will not obscure any advertisements from general view via HTML/CSS or any other means. By using the Service, you agree that Sticks & Stones has the right to run such advertisements with or without prior notice, and without compensation to you or any other User. The manner, mode and extent of advertising by Sticks & Stones on your User Content and throughout the Service shall be determined by Sticks & Stones in its sole discretion.
From time to time, the Service may also contain promotions from third parties. As a result, you may have the opportunity from time to time to enter into correspondence with or participate in promotions offered by any advertisers and/or merchants displaying their products or services on the Service. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser and/or merchant. Sticks & Stones assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
15. DISCLAIMER OF WARRANTIES
STICKS & STONES DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION, MATERIAL, DATA, PRODUCTS OR SERVICES DISPLAYED ON OR INCLUDED IN THE SERVICE. STICKS & STONES DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION, MATERIAL, DATA, PRODUCTS OR SERVICES. STICKS & STONES DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION, MATERIAL, DATA PRODUCTS OR SERVICES ON THE INTERNET THROUGH THE SERVICE OR IN RELATION TO THE SERVICE.
THE SERVICE, AND ALL MATERIALS, INFORMATION, DATA, PRODUCTS AND SERVICES INCLUDED IN THE SERVICE ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. STICKS & STONES AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND IMPLIED WARRANTIES AND CONDITIONS ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE.
STICKS & STONES AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE AND ALL MATERIALS, INFORMATION, DATA, PRODUCTS AND SERVICES INCLUDED IN THE SERVICE. STICKS & STONES DOES NOT WARRANT THAT THE SERVICE OR ANY MATERIALS, INFORMATION, DATA, PRODUCTS OR SERVICES INCLUDED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
STICKS & STONES AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICE AND ALL MATERIALS, INFORMATION, DATA, PRODUCTS AND SERVICES INCLUDED IN THE SERVICE. STICKS & STONES AND ITS LICENSORS ALSO DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE. IN NO EVENT WILL STICKS & STONES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU OR ANYONE ELSE IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICE.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, DATA, INFORMATION, PRODUCTS AND SERVICES THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, DATA, INFORMATION, PRODUCTS AND SERVICES.
SOME STATES OR PROVINCES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL STICKS & STONES OR ITS LICENSORS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF OR RELIANCE ON THE SERVICE. SUCH LIMITATION OF LIABILITY FOR ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF STICKS & STONES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICE, FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR ACCOUNT, FROM INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE.
THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SERVICE.
THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO UNAUTHORIZED ACCESS TO OR ALTERATION OF YOU TRANSMISSIONS OR DATA.
THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT PAID, IN CASH, BY THAT USER FOR THE SERVICE DURING THE YEAR PRIOR TO ACCRUAL OF THE DAMAGES, LOSSES, OR CAUSES OF ACTION.
Without limiting the foregoing, under no circumstances shall Sticks & Stones or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
You agree to indemnify, defend and hold harmless Sticks & Stones and its subsidiaries and affiliates, and each of their directors, officers, employees, agents, representatives, licensors and licensees, from any damages, losses, costs and expenses (including legal fees), incurred in connection with any third party claim or demand arising out of your User Content, your use of the Service, your connection to the Service, your breach of this Agreement or your violation of any law or the rights of such third party. Sticks & Stones reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate fully as reasonably required by Sticks & Stones.
18. GOVERNING LAW
This Agreement and your use of the Service shall be governed and construed in accordance with the laws of the province of California and the federal laws of the United States applicable therein, excluding the application of any rule or principal of conflict of law that might otherwise refer construction, interpretation, or the resolution of any dispute to the laws of another jurisdiction.
20. CHANGES IN TERMS AND CONDITIONS
We reserve the right to modify the Service from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to you, the Account of any other User or any third party. We reserve the right to modify this Agreement from time to time without notice. Please review this Agreement from time to time so that you will be apprised of any changes.