THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND TOM. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICES.
- 1.1The Services are offered by TOM to enable you to see, experience, and learn more about Japanese otaku culture, such as animation (anime), comics (manga), illustration, cosplay etc., and to engage with other fans of such culture. Through the Services you will be exposed to a wide range of information, including, possibly, photographs, communications, music, videos, artwork, messages, and merchandise (collectively, "Content"). Some of the Content may be provided by us while other Content may be provided by other users of the Services or third party merchandisers (each a "User" and, collectively, "Users"). Content provided by Users, including any public postings or communications with other Users of the Services, is, collectively, "User Content."
- 1.2Use by or on Behalf of an Entity. If you are using the Services on behalf of a company, entity or organization (each a "Subscribing Entity"), then you represent and warrant that you: (a) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such Subscribing Entity.
- 1.3Changes to these Terms. The Website and all Services (but not the Third Party Sites) are owned and operated by TOM. TOM reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Website. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. It is incumbent upon you to visit this page periodically to ensure your continued acceptance of these Terms. Your continued use of the Services after a revised version of these Terms has been posted by TOM to the Website constitutes your binding acceptance of such revision and the revised Terms. Notwithstanding the preceding sentences of this Section 1.3, no revisions to these Terms will apply to any dispute between you and TOM that arose prior to the date of such revision.
- 1.4Evolving Nature of Services. The Services are continually under development and changes to the Services may be made at any time. If you disagree with the Terms or are in any way dissatisfied with the Service, we hope you will let us know by sending an e-mail to email@example.com, but your sole remedy is to discontinue your use of the Services.
- 1.5Consideration. You understand and agree that these Terms are entered into in consideration of your use of the Services and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
- 1.6Jurisdictional Issues. The Website and the Service are controlled and operated by TOM from its offices in Japan. However, portions of the Services are targeted for users located in the United States of America. TOM makes no representation that Content available on or though the Services are appropriate or available for use in locations other than Japan and the United States of America. Those who choose to access or use the Services from locations other than Japan and the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Services from jurisdictions where the Content or practices of the Services are illegal, unauthorized or penalized is strictly prohibited. If access to any Content made available on the Website or via the Services by you shall give rise to any liability for TOM outside of Japan or the United States of America or require that TOM obtain any licenses for activities outside of Japan or the United States of America, then you are expressly prohibited from using or accessing the Service through any means or channel.
2. USE OF THE SERVICE
The Service is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICES AT ANY TIME OR IN ANY MANNER. By using the Services, you affirm that you are at least 18 years of age. If you are 13 to 17 years of age, then you must obtain your parent or guardian’s consent to use the Services and by using the Services you hereby represent that you have obtained such consent. TOM does not seek to gather personal information from or about children under the age of 13 through the Services.
5. SERVICE SECURITY
We have gone to great lengths to develop the Services and may, from time to time, take steps to protect the integrity or operation of the Services. If you violate these Terms in any way, as determined in our sole discretion, we may terminate your right to use the Services without any liability to you. We reserve the right to investigate any alleged or suspected violations of these Terms and, if a criminal violation is suspected or harm to the Services or any other Users or person, property or thing is expected, anticipated or feared, then TOM may refer such suspected violations or activities to law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Services. You hereby consent in advance to such disclosures and agree that you will not have any claims against TOM arising out of such disclosures to law enforcement agencies.
- 6.2Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by TOM. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an email address provided by you are returned as undeliverable, then TOM reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
- 7.1License to the Services. We grant you a limited, revocable, non-assignable, non-sublicensable, royalty free license to access and use the Services solely in accordance with the Terms and pursuant to any authorized functionalities of the Services, including the right to access and view content made available through the Services. Except as expressly provided for in these Terms, there are no implied licenses for the use of the Services or for any Content made available on or through the Services, and the license granted herein is for your personal, non-commercial use only. No commercial uses of the Services are hereby authorized without our separate written consent, which may be withheld for any reason.
- 7.2The Content made available on or through the Services (excluding User Content), may be protected by copyright or other intellectual property rights and owned by TOM or third party licensors of TOM. No material from the Services may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without written permission of the copyright owner. Modification of materials obtained from the Services, including, but not limited to, User Content, and Products, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of TOM or its licensors, unless you have obtained express written authorization to the contrary. All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to TOM.
- 7.3Trademarks. All trademarks, service marks, logos and trade names on the Services, whether registered or unregistered, are proprietary to TOM or to other companies where so indicated. Unless otherwise permitted by law, you may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
- 7.4User Content. This section governs any User Content you upload or transmit to or through the Services:
- (a)General. You are solely responsible for all User Content you submit to or through the Services. You must not upload or transmit any User Content to or through the Services or to us through email that you consider to be confidential or proprietary or the rights to which have not been cleared by you. Any User Content uploaded, linked to, or transmitted to or through the Services or to us via email will be considered non-confidential and non-proprietary, and treated as such by us, and may be used by TOM any purpose or disclosed by us to any third party with or without notice to you and without any liability by us.
- (b)Retention of Your Intellectual Property Rights. BY UPLOADING, LINKING TO OR OTHERWISE PROVIDING USER CONTENT TO THE SERVICES YOU ARE NOT – PURSUANT TO THESE TERMS – SURRENDERING ANY INTELLECTUAL PROPERTY RIGHTS IN YOUR USER CONTENT THAT YOU MAY HAVE. RATHER, YOU ARE MERELY GRANTING TOM A LICENSE PURSUANT TO THE PROVISIONS OF THESE TERMS. YOU WILL CONTINUE TO OWN, TO THE EXTENT OF YOUR EXISTING RIGHTS, ALL OF YOUR USER CONTENT.
- (c)License Grants. You hereby grant TOM an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), create derivative works from, modify (e.g., reformat), transmit to Third Party Sites, and otherwise use and exploit (collectively, "Use") all User Content you link to or upload to or through the Services or to us through email, on and through the Services (including when the Services are made available through Third Party Sites), regardless of how such Services are delivered to Users, including through any technologies or distribution methods now known or hereafter created, and to advertise, market, and promote the Services and/or the availability of your User Content on the Services. You further grant TOM a royalty-free license to Use your name, image, voice, likeness, and any information provided by any Third Party Sites whose credentials you use to access the Services in conjunction with advertising, marketing, or promoting the Services or the availability of your User Content.
- (d)Survival of Rights for Removed User Content. You may delete your User Content from your account on the Services at any time but the rights granted in Section 7.4(c) shall survive the deletion of your User Content to the extent your User Content is stored on computer servers or other storage media or technologies utilized by TOM. We may also retain any of your User Content for archival or audit purposes or pursuant to any judicial or administrative order. Any User Content you post in a public section of the Services (e.g., a comments section) may remain on the Services indefinitely and we have no obligation to remove such User Content.
- (e)Limitations on Grant of Rights to TOM. Notwithstanding the grant of rights in Section 7.4(c), nothing contained in these Terms grants TOM a right or license to sell your User Content on a standalone basis to any third party, although you acknowledge and agree that TOM may generate advertising, subscription, and other revenues from the operation of the Services, including advertising that may appear before, after or simultaneously with the display of your User Content, and that you will have no right to share in any portion of such revenue.
- (f)Waiver of Rights. By uploading User Content to or through the Services you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You further waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof, including, without limitation, your name, likeness, voice, image, and persona or any advertising or publicity relating thereto. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you upload to or through the Services. You expressly release TOM and all of TOM’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Content. Notwithstanding the preceding sentences of this Section 7.4(f), you should let us know immediately if you object to any uses of your User Content on or through the Services or in the promotion of the Services. We will consider all reasonable requests to terminate any Use that you find objectionable, but we shall have no liability to you for any Use authorized in these Terms.
- (g)Requirement that You Be an Owner of or Fully Authorized to Grant the Rights To User Content. If you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to upload or transmit to or through the Services, then you must not upload the User Content to or through the Services.
- (h)Confirmation of Rights. TOM reserves the right to demand confirmation from you in writing of all authorizations, licenses, permissions, and consents obtained by you (if any) with respect to any third-party materials embodied in User Content you upload to or transmit through the Services. If you fail to provide us with such confirmation upon request, we reserve the right to remove or deny access to any or all of your User Content available on or through the Services and to suspend or terminate your account with TOM. We will have no liability to you for any actions taken by us pursuant to this Section 7.4(h).
- (i)Representations and Warranties with Respect to Your User Content. By uploading or transmitting User Content to or through the Services, you hereby represent and warrant to TOM that (a) you have obtained all necessary rights, permissions, authorizations, licenses, and clearances to grant the licenses and rights set forth in these Terms with respect to such User Content and (b) the Use of such User Content in a manner consistent with these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require TOM or any Third Party Site on or through which the Services is made available to pay any fees of any kind to any third party for any Use of your User Content.
- (j)Other Inventions and Concepts. You further grant TOM a royalty-free license throughout the universe to Use, without any payment or accounting to you or any other third party, any concepts, know-how, ideas or inventions that you (and those who act on your behalf) upload or transmit to or through the Services or to us through email.
8. MONITORING AND REMOVING USER CONTENT; RELIANCE ON USER CONTENT
- 8.1Monitoring User Content. We do not control User Content accessible on or through the Services, and do not have any obligation to monitor User Content for any purpose. We also have no obligation to permit User Content to be made available on or through the Services. We may choose, in our sole discretion, to monitor, review, or otherwise access some or all User Content, but by doing so we nonetheless assume no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, or to monitor, review, or otherwise access other User Content. You acknowledge that we may remove any of your User Content from the Services at any time, with or without notice to you and without any liability to you, including for, by way of example and not limitation, any violation of these Terms or the posting of any User Content that we find objectionable, offensive, or detrimental to the Services, other Users or TOM.
- 8.2Reliance on Accuracy of User Content. You agree that you will evaluate and bear all risks associated with any User Content you obtain on or through the Services, including any reliance on the accuracy, completeness, usefulness or legality thereof. TOM makes no representations or warranties with respect to any User Content.
- 8.3Reporting of Content. If you locate any User Content on or through the Services that you find offensive or objectionable, you may report such User to TOM by sending an e-mail to firstname.lastname@example.org. If you believe any User Content infringes any of your intellectual property rights, then please report such User Content pursuant to Section 17 of these Terms.
- 8.4No Endorsement. TOM does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any User Content. The opinions expressed in any User Content are to be attributed solely to the author thereof. Any reliance you place on any User Content is at your own risk.
9. TOM STORE
- 9.1Products Sold by TOM.
- (a)TOM may offer products (“Products”) for sale on a subdomain of the Website (the “TOM Store”) including both physical and digital goods. The price for each Product shall be displayed at the point of purchase. You shall be responsible for the payment of any Product purchased by you (each such purchase, a “Transaction”), as well as any shipping costs, taxes or other fees associated with Products.
- (b)TOM reserves the right to immediately halt the offering or sale of any Products, in its sole and absolute discretion, without any liability to any User, and to correct any inaccurate listing or technical problems with any Products. If you identify any inappropriate Products available via the Services, please send a detailed e-mail notice to email@example.com identifying the inappropriate Product and a brief explanation of why such Product is inappropriate.
- (c)Replacement Products. TOM may redistribute previously purchased copies of digital Products, if, in TOM’s sole determination, a purchaser of such Product received a corrupted or otherwise damaged item. TOM shall not charge a User a fee for a re-download. If a digital product you have purchased is corrupted or otherwise damaged, then please send an e-mail explaining the problem and the circumstances under which such problem arose to firstname.lastname@example.org. TOM may terminate, in its sole and absolute discretion, the account of any User that is deemed to be abusing this provision.
- (a)Currency. All charges and payments for Products will be made in U.S. currency unless otherwise specified. Currency exchange settlements and foreign transaction fees are based on your agreement with your credit card, debit card or other payment method provider.
- (b)Methods of Payment. Purchases of Products through TOM can only be made using an approved payment mechanism. You must be authorized to use the payment method used to make purchases through the Services. All purchases of Products made through the Services will be confirmed by an e-mail sent to the e-mail address affiliated with your User account. If you have any questions regarding any purchase confirmation you receive, please direct your questions to email@example.com.
- (c)Prices. Published prices do not include taxes, duties or shipping and may be changed without notice at any time. You agree to indemnify and hold TOM harmless from any claims by any taxing authority arising out of your purchase of Products through the Services.
- (d)Refunds. All sales of Products are final, and TOM does not offer refunds for any purchased Products. If any Product purchased by you is corrupted or otherwise damaged, then please contact firstname.lastname@example.org for assistance in receiving a replacement, to the extent TOM offers a replacement for such product in its sole and absolute discretion.
- (e)Cancellation of Payments and Purchases. Payments and purchases may not be cancelled by you, except as required by law. However, TOM reserves the right to refuse or terminate any purchase or attempted purchase at any time in its sole discretion. You understand and agree that if you authorize a Transaction with your credit card, debit card or other payment method, but your charge is rejected for any reason, there may be a hold on your use of that transaction amount for several days.
- 9.3Title. Risk of loss and title for physical Products purchased from the TOM Store pass to you upon delivery of such Products to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments. Title to digital Products that you buy will pass to you upon delivery of the Products. The purchase of a Product shall not transfer any intellectual property rights in any Products unless specifically noted.
- 9.4Shipping. When you place an order for a physical Product through the TOM Store, the Product will be shipped to the address you designated at the time of purchase.
- 9.5TOM Points.
- (a)The Services may include an opportunity for you to earn (including by pre-registering for the TOM Store), buy or use a type or types of virtual currency (“TOM Points”) to purchase Products in the TOM Store.
- (b)TOM Points are not real money, do not have monetary value, and may never be redeemed for “real world” money or other items of monetary value from outside of the Services without our written permission. While we may use terms like “buy”, “purchase” or “sell” in reference to the TOM Points, we do so only for convenience and such terms in no way indicate that TOM Points have monetary value or are real money. You acknowledge that TOM Points are not real currency and are not redeemable for any sum of money from us at any time. We make no guarantee as to the nature, quality or value of the features of the Services or the availability or supply of TOM Points.
- (c)TOM Points are provided to you under a limited, personal, revocable, non-transferable, nonsub-licensable license to use within the Services. TOM Points may not be transferred or re-sold in any manner, including, without limitation, by means of any direct sale or auction service. Any “virtual currency” balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
- (d)All TOM Points are forfeited if your account or access to the Services is terminated or suspended for any reason, in our sole and absolute discretion, or if we discontinue availability of some or all of the Services. We may at any time expire free or promotional TOM Points given to you.
- (e)We have no liability for hacking or loss of your TOM Points or any Products obtained via TOM Points. We have no obligation to, and will not, reimburse you for any TOM Points or any Products obtained via TOM Points that are lost due to your violation of these Terms. We reserve the right, without prior notification, to limit the quantity of TOM Points and/or to refuse to provide you with any TOM Points. Price, exchangeability and availability of TOM Points are determined by us in our sole discretion and are subject to change without notice. You agree that we have the absolute right to manage, distribute, regulate, control, modify and/or eliminate TOM Points, at any time, with or without notice, as we see fit in our sole discretion, and that we will have no liability for exercising such right.
- (f)You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your TOM Points regardless of the circumstances. You absolve us of any responsibility to maintain or update your TOM Points account. However, if there is a loss of TOM Points in your account due to technical or operational problems with the Services, we will refund the lost TOM Points once the loss has been verified. Without limiting any of the foregoing provisions of this Section 9.5 of the Terms, our maximum liability or responsibility to you is to refund the TOM Points lost.
- (g)Redemption of TOM Points.
- (i)You may redeem your TOM Points for Products in the TOM Store. We will, in our sole discretion, determine and communicate the availability and exchange rate for any TOM Points, which may be modified at any time. You must comply with any individual Product limitations as indicated via the Services. All redemptions are subject to these Terms and all limitations and requirements stated via the Services.
- (ii)You may choose a Product that is available for which you have sufficient TOM Points for redemption. You may only redeem your TOM Points for the equivalent of their entire value, as determined by TOM. By way of example, if you have the equivalent of $5 in TOM Points, you must spend all $5 worth of TOM Points in a single Transaction. Upon selecting the Product you wish to buy with your TOM Points, follow the instructions to complete the redemption process. As part of the redemption process, you may receive a confirmation email or message from us and/or our designee and, when applicable, an email or message containing the Products in the form of a link, code, coupon or similar means. Emails or messages will be sent to the email address or other contact information assigned to your account. You hereby authorize us to communicate with you via email.
- (iii)All acquisitions of TOM Points and redemptions for Products are final. Once TOM Points have been lost or spent, they will be subtracted from your account and cannot be refunded or returned, except in our sole discretion. No TOM Points will be re-credited to your account in the event of a return or exchange of a Product, or any problem with any Product.
10. PROHIBITED ACTIVITIES
- 10.1In using the Services you agree not to:
- (a)Create a false identify or impersonate another person or entity in any way;
- (b)Upload or otherwise transmit to or through the Services any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your User Content;
- (c)Upload or otherwise transmit to or through the Services any unlawful, false, misleading, harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind;
- (d)Upload or otherwise transmit to or through the Services any material that can cause harm or delay to the Service or computers of any kind;
- (e)Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise);
- (f)Restrict, discourage or inhibit any person from using the Services, disclose personal information about a third person on the Service or obtained from the Services without the consent of such person, or collect information about users of the Services;
- (g)Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Services or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Services, or by law, or otherwise attempt to use or access any portion of the Services other than as intended by TOM;
- (h)Gain unauthorized access to the Services, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services;
- (i)Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Services, use of the Services, access to the Services or User Content obtained through the Services, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without TOM’s express written consent:
- (i)copying, caching or reformatting any materials accessed through the Services for commercial purposes in any fashion whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Services to alternative delivery formats;
- (ii)framing, embedding and/or passing off information obtained from the Services in such a manner as to present them as originating from a source other than the Services;
- (iii)altering, defacing, mutilating or otherwise bypassing any approved software through which the Services are made available; and
- (iv)using any trademarks, service marks, design marks, logos, photographs or other Content belonging to TOM or obtained from the Services.
- (j)Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services;
- (k)Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any part of the Services or any Content (including User Content) accessible on or through the Services, or features that enforce limitations on the use of the Services or any Content accessible on or through the Service;
- (l)Use any scraper, spider, robot or other automated means of any kind to access the Services, except and solely to the extent permitted by these Terms and the features of the Services, deep-link to any feature or Content (including User Content) on the Service, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
- (m)Interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of such networks or servers;
- (n)Violate any applicable federal, state or local laws or regulations or these Terms; or
- (o)Assist or permit any persons in engaging in any of the activities described above.
11. DISCLAIMER OF CONTENT (INCLUDING USER CONTENT)
- 11.1YOU UNDERSTAND THAT WHEN USING THE SERVICES, YOU MAY BE EXPOSED TO CONTENT (INCLUDING USER CONTENT) FROM A VARIETY OF SOURCES, AND THAT TOM IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT (INCLUDING USER 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 TOM WITH RESPECT THERETO.
- 11.2UNDER NO CIRCUMSTANCES WILL TOM BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY CONTENT (INCLUDING USER CONTENT), INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, 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 (INCLUDING USER CONTENT) OR PRODUCTS DISPLAYED, PERFORMED, TRANSMITTED OR ACCESSIBLE ON OR THROUGH THE SERVICES. BY ACCESSING OR USING ANY CONTENT (INCLUDING USER CONTENT) DISPLAYED, PERFORMED, TRANSMITTED OR ACCESSIBLE ON OR THROUGH THE SERVICES, YOU WAIVE ANY AND ALL CLAIMS AGAINST TOM THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH CONTENT.
- 11.3Retaining Backup Copies. TOM DOES NOT GUARANTEE THE CONTINUED AVAILABILITY OF USER CONTENT, AND MAY DELETE ANY USER CONTENT FROM THE SERVICES AT ANY TIME. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU RETAIN COPIES OF ANY USER CONTENT YOU UPLOAD TO THE SERVICES.
12. LINKS TO THIRD PARTY SITES
- 12.1Links. The Services provide links to Third Party Sites. These links are for convenience only. If you use these links, you will leave the Services. TOM is not responsible for the availability of or the content provided by these Third Party Sites, or for any viruses or other damaging elements encountered in linking to a Third Party Site, whether or not TOM is affiliated with the owners of such Third Party Sites. In addition, the linking to Third Party Sites is not an endorsement or approval by TOM of the organizations owning, operating, or sponsoring such Third Party Sites or their products or services. These Terms do not apply to Third Party Sites, and you should review applicable terms and policies, including any relevant privacy policies, associated with any Third Party Sites. Notwithstanding the immediately preceding sentence, the use of any portion or feature of the Services available on or through a Third Party Site will continue to be subject to these Terms.
- 12.2No Liability for Third Party Sites. YOU AGREE THAT TOM WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY ADVERTISING ON THE SERVICE.
You agree to indemnify, defend, and hold harmless TOM and its parent, subsidiaries, affiliates, investors, partners, sublicensees or any related companies, licensors and suppliers, and its and their respective directors, officers, employees, agents, representatives, contractors, and assigns from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (1) your use or misuse of the Services; (2) your breach or other violation of these Terms, including any representations, warranties and covenants herein; (3) any User Content uploaded by you on or through the Services; or (4) your violation of the rights of any other person or entity, including any intellectual property or other protected rights. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us if we, in our reasonable discretion, conclude that you are not adequately protecting our interests or are incapable of protecting our interests, and you agree to cooperate with our defense of these claims. We shall provide you with notice (email shall suffice) in the event we assume the defense or control of any matter pursuant to this Section 12; provided we have information necessary for contacting you. You agree not to settle any matter for which you are obligated to indemnify TOM without the prior written consent of TOM. We will use reasonable efforts to notify you of any such claim, action or proceeding for which it is seeking indemnity from you upon becoming aware of it, but TOM’s inability to contact you shall not relieve you of your indemnification obligation.
14. ADDITIONAL DISCLAIMERS
- 14.1THE SERVICES AND ANY CONTENT AND PRODUCTS ACCESSIBLE ON AND THROUGH THE SERVICES (INCLUDING USER CONTENT) ARE PROVIDED BY TOM ON AN "AS IS," "AS AVAILABLE," "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
- 14.2TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TOM AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOM, AN EMPLOYEE OR REPRESENTATIVE OF TOM OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. TOM AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN CONTENT AND PRODUCTS THROUGH THE SERVICES OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH CONTENT OR PRODUCTS.
- 15.1Limitation of Liability. IN NO EVENT WILL TOM OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICES OR ANY CONTENT MADE AVAILABLE OR PRODUCTS PURCHASED THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF TOM OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TOM OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF (1) ONE HUNDRED DOLLARS ($100.00) OR (2) THE AMOUNT OF FEES YOU HAVE PAID TOM (IF ANY) IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
- 15.2Basis of the Bargain. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TOM, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TOM, TOM’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT TOM WOULD NOT BE ABLE TO OFFER THE SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
16. TERM AND TERMINATION
- 16.1Term. These Terms, as amended, will be effective commencing with your first use or registration of the Services and will remain in full force and effect until terminated as set forth below.
- 16.2Termination by TOM. TOM may terminate your use of the Services or any of our features or services at any time and for any reason, with or without notice, including, but not limited to, for conduct violating these Terms or upon TOM’s sole determination as necessary to protect the Services, other Users of the Services, or TOM or its partners and affiliates. You hereby agree to TOM’s broad right of termination. You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use the Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor.
- 16.3Termination by You. You are free to terminate your use of the Services at any time. You can simply choose to stop visiting or using any aspect of the Services. If you wish to terminate your account on the Services, you may do so by sending an e-mail to email@example.com or using any other account termination functionality that may be offered through the Services.
17. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
- 17.1TOM respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Services.
- 17.2TOM’s intellectual property policy is to (a) remove or disable access to Content or materials that TOM believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Services, and (b) remove any Content posted to the Services by "repeat infringers." TOM considers a "repeat infringer" to be any user that has uploaded User Content to the Services and for whom TOM has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. TOM has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon TOM’s own determination.
- 17.3Procedure for Reporting Claimed Infringement.
- (a)If you believe that any Content accessible on or through the Services infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
- (i)A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- (ii)Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- (iii)Identification of the specific 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 TOM to locate the material;
- (iv)Information reasonably sufficient to permit TOM to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- (v)A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer and/or see 17 U.S.C. § 512 of the United States Copyright Act to confirm your obligations to provide a valid notice of claimed infringement.
- 17.4Designated Agent Contact Information. TOM’s Designated Agent for notices of claimed infringement can be contacted at:Via E-mail: firstname.lastname@example.org
Via U.S. Mail:Naomitsu Kodaka
- 17.5Counter Notification.
- (a)If you receive a notification from TOM that material made available by you on or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide TOM with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to TOM’s Designated Agent through one of the methods identified in Section 17.4, and include substantially the following information:
- (i)A physical or electronic signature of the subscriber;
- (ii)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;
- (iii)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; and
- (iv)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 TOM may be found, and that the subscriber will accept service of process from the person who provided notification under Section 17.3 above or an agent of such person.
- (b)A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- 17.6False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that: any person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
TOM reserves the right to seek damages from any party that submits a notification of claimed infringement in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 17 should be sent to the Designated Agent at email@example.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions about TOM, the operation of the Services or any other matter should be sent to firstname.lastname@example.org.
18. DISPUTE RESOLUTION
- 18.1Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND TOM AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- (a)Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a "Notice"), or, in the absence of a mailing address provided by you to TOM, to you via any other method available to TOM, including via e-mail. The Notice to TOM should be addressed to: Tokyo Otaku Mode Inc., 1-25-12-802 Taito Taito-ku Tokyo, 110-0016, Japan, Attn: Chief Executive Officer (the "Arbitration Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the "Demand"). If you and TOM do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or TOM may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "Rules"), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against TOM, then TOM will promptly reimburse you for your confirmed payment of the filing fee upon TOM’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or your filing is in bad faith, in which case you are solely responsible for the payment of the filing fee.
- (b)Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and TOM agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- (c)No Class Actions.YOU AND TOM AGREE THAT YOU AND TOM MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
- (d)Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Services evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
- 18.2Choice of Law. These Terms and your use of the Services shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and TOM under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and you and TOM hereby submit to the personal jurisdiction and venue of these courts.
- 18.3Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which TOM seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by TOM or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against TOM, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
- 18.4Claims. You and TOM agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- 18.5Improperly Filed Claims. All claims you bring against TOM must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, TOM may recover attorneys’ fees and costs up to $5,000, provided that TOM has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- 19.1Entire Agreement. This is the entire agreement between you and TOM 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 made by TOM as authorized in these Terms.
- 19.2Waiver. 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 TOM to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
- 19.3Severability. 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.
- 19.4Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TOM without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
- 19.5No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TOM as a result of these Terms or use of the Services.
- 19.6Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 4 (Privacy), 5 (Service Security), 7.4(d) (Survival of Rights for Removed User Content); 7.4(i) (Representations and Warranties with Respect to Your User Content), 8 (Monitoring and Removing Content; Reliance on User Content), 10 (Prohibited Activities), 11 (Disclaimer of Content, Including User Content), 12 (Links to Third Party Sites), 13 (Indemnity), 14 (Disclaimers), 15 (Limitations), 16 (Term and Termination), 18 (Dispute Resolution), and 19 (Miscellaneous).
- 19.7Headings.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.
- 19.8E-mail Communications. You hereby authorize TOM to communicate with you about the Service via email during the Term and at least once following the Term to confirm any termination of these Terms.
- (a)Contact Information for TOM. The services hereunder are offered by Tokyo Otaku Mode Inc., located at 444 Castro Street, Suite 1200, Mountain View, CA 94041. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. You may also reach us by telephone at +81-90-4816-3968. The preceding Japanese phone number is not a toll free number and international calling rates may apply if calling from the United States.
- (b)Consumer Complaints. Under California Civil Code § 1789.3, the provider of an electronic commercial service is required to provide consumers with certain information, including the procedures a consumer may follow in order to resolve a complaint regarding the service or to receive further information regarding use of the service. The California code requires that the telephone number and address of the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs be disclosed. Although TOM may not be a provider of an electronic commercial service within the meaning of Section 1789.3, we hereby provide the following contact information for Users of the Services:
California Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
(800) 952-5210 or (916) 445-1254
Last Updated: February 20, 2013