TERMS OF SERVICE
Published in April 2012
This website (the “Site”) is owned and operated by National Entertainment Collectibles Association, Inc. (“NECA”), which shall include its funders, successors, corporate parents, subsidiaries, affiliates, officers, directors, agents, developers, joint-venturers, advertisers, distributors and attorneys (the “Affiliated Entities”).
These Terms limit NECA’s liability and obligations to you, grant NECA certain rights and allow NECA to change, suspend or terminate your access to and use of the Site. Your access to and use of the Site are expressly conditioned on your compliance with these Terms. You agree to notify any employees, agents, household members or other individuals who will access the Site of the terms and conditions of these Terms and they must agree to be bound by these Terms, prior to their use of the Site.
YOU UNDERSTAND THAT BY USING THE SITE AND/OR BY CREATING AND USING YOUR USER ACCOUNT, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT BUSINESS.
YOU MUST BE AT LEAST FOURTEEN (14) YEARS OLD TO USE THE SITE. If you are not yet 14 years old, do not use the Site.
IF YOU ARE BETWEEN 14 AND 18 YEARS OLD: Please have your parents or legal guardian review these Terms with you, discuss any questions you might have, and give you their permission to register and use the Site with both your and their full understanding of these Terms. By using the Site, you are telling us that you and your parent or guardian, have joined in this agreement.
1. DEFINED TERMS
For purposes of the Terms, the following defined terms shall have these meanings:
1.1. “IPR” means any rights in or to, but not limited to, copyrights, patents, trademarks, brand names, trade names, business names, know-how or confidential information and any other rights in respect of any other industrial or intellectual property, whether registrable or not and wherever existing in the world and including without limitation all rights to apply for registrations of any of the foregoing rights;
1.2. “Site” means this site, including any and all audio and/or visual elements thereof, created or owned by NECA or by NECA’s approved third party provider (“Third Party Provider”), or user generated content, whether or not commissioned by NECA), including, without limitation, any text, graphics, images, illustrations, photographs, animations, applications, video, audio or audiovisual works (including, for example, without limitation, movie trailers or episodic works), designs, logos, and other information and content made available through the Site, as well as all underlying technical elements of all of the foregoing, including without limitation, source code, script, object code, software, computer programs, and other sets of statements and instructions.
2. GRANT OF RIGHTS
NECA grants you a limited, non-exclusive, non-assignable, non-transferable right and license to access, use and display the Site, solely as described in these Terms, provided that you comply fully with these Terms.
In the event that you access, customize or download Site content, such Site content is non-exclusively licensed to you by NECA or by a Third Party Provider. NECA does not transfer title to the Site content to you. You may own the medium to which your custom content is recorded, but NECA and/or the Third Party Provider retain full and complete title to their respective content, and all IPR therein. You may not and agree not to redistribute, sell, decompile, reverse engineer, disassemble the Site content.
3. SITE CHANGES
4. INTELLECTUAL PROPERTY RIGHTS
4.1. The Site and all IPR therein are owned by NECA and/or its content providers (including its users) and other licensors, and are subject to protection under the relevant intellectual property laws throughout the world. Except as expressly set forth in these Terms or as otherwise permitted in writing by NECA, you agree not to: (1) capture, transfer, upload, distribute, sell, license, modify, manipulate, reproduce, perform, publicly display, create derivative works from or based upon, or otherwise exploit the Site, in whole or in part, on any other website or in any medium now known or hereafter developed; and (2) remove or modify any trade names, product names, logos, trademarks, copyrights or other proprietary notices, legends, symbols or labels on the Site (each of the foregoing, “Unauthorized Conduct”).
4.2. Any Unauthorized Conduct constitutes a violation of these Terms and an infringement of the IPR of NECA and/or its content providers or other licensors. Any such infringement or violation may subject you to civil and criminal liability and penalties under intellectual property laws throughout the world, including without limitation the payment of damages and attorney’s fees.
5. USER SUBMISSIONS
During your use of the Site, you may send, post, or otherwise transmit text, links, software, photographs, video, sound, music, feedback, comments, suggestions, or other information, material or files including, without limitation, names or likenesses (all whether concerning you or a third party) (collectively, the “Submissions”) to the Site, whether or not requested to do so by NECA. You shall be deemed to have granted to NECA a worldwide, perpetual, royalty-free, non-exclusive, transferrable, sub-licensable, license to cache, copy, distribute, transmit, publicly display, reproduce and otherwise use or exploit the Submissions on the Site and in any other media, digital or analog, now known or hereafter developed throughout the universe including, without limitation, the internet, mobile devices, and in advertising or promotion, print or otherwise. YOU WILL CONTINUE TO OWN ANY IPR IN AND TO THE SUBMISSIONS THAT YOU ALREADY OWN WHEN YOU SENT SAID SUBMISSIONS TO THE WEBSITE. FURTHERMORE, YOU WILL CONTINUE TO HAVE CONTROL OVER SAID SUBMISSIONS.
For the avoidance of doubt, by submitting your Submission you understand and agree that: (a) any Submissions may become publicly viewable on the Site or elsewhere; (b) NECA has the right to publish your user name in connection with your Submissions, wherever applicable; (c) you will only submit Submissions that you own or have permission to submit from the owner, in which case you will provide NECA, upon our request, with a copy of a written consent from the owner; and (d) your Submission constitutes a waiver of the right to privacy or publicity of the owner of the Submission and any third party named in it with respect to the Submission and all of its contents.
NECA shall have no obligation to pay you any compensation for your Submissions and with respect to NECA’s use or nonuse of your Submissions, and is under no obligation to post or use any Submissions you may provide. NECA may, in its sole discretion, remove any Submissions at any time, with or without notice to you, prior or otherwise. You may request the removal of your Submissions for any reason on reasonable written notice to NECA, on receipt of which NECA will take commercially reasonable steps to comply.
NECA does not and cannot review all Submissions and is not responsible for the content or substance thereof. However, NECA reserves the right to delete, move, or edit Submissions that it, in its sole discretion, deems to be abusive, defamatory, obscene, in violation of copyright or trademark laws, or in violation of any person’s rights of privacy or publicity, or otherwise unacceptable, provided that NECA shall not be deemed the publisher of any Submission by virtue of its right to control said Submission. Any views and opinions expressed in a Submission reflect author’s point of view and are not necessarily those of NECA or its Affiliated Entities.
6. SITE RULES AND GUIDELINES
6.2. User Registration and Acceptance of Rules. In order to access some features of the Site, you may be required to create or register for a user account. In consideration for your use of the Site, you agree to (i) comply with the Rules, (ii) provide accurate, complete and true information about yourself as may be required on any registration form for the Site (your “Registration Information”) in order to create your user account, and (iii) maintain and update, as applicable, your Registration Information with current and complete information. Users who violate the Rules, or provide inaccurate, false, or non-current Registration Information may, at NECA’s sole discretion, have their user accounts suspended or terminated, and may be permanently banned from using any current or future features or services of the Site.
6.3.Account Security. You are solely responsible maintaining the confidentiality of your user name and password. We urge you not to share your login information with others, as this may lead to unauthorized access to your user account and the information therein. You agree that you will (i) immediately notify NECA of any unauthorized use of your user account, and (ii) ensure that you properly log out of the Site at the completion of your use session. You are solely responsible for the activity that occurs on or through your user account. NECA shall have no liability for any loss or damage arising from your use of a user account, the Site, or your failure to comply with these requirements. NECA will not be liable for any losses caused by any unauthorized use of your user account, and you may be liable for the losses of NECA or others due to such unauthorized use.
6.4.Usage Guidelines. You agree that your item listings shall include only accurate descriptions and representations of the item(s) to be given away and that all items to be posted on this Site shall be legal and shall not violate any local, state, national, or international law or regulation. The following non-inclusive list of violations may result in NECA terminating or suspending your user account and/or your access to the Site and you agree not to engage in any of the following conduct anywhere on the Site:
6.4.1. Submit material that is subject to the IPR protections of a third party, including without limitation, any IPR or material otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have permission from the owner of such rights to post said material and to grant us all of the license rights granted herein;
6.4.2. Request, demand, or suggest payment for items posted on or to the Site;
6.4.3. Use the website as a platform for promotional giveaways;
6.4.4. Transmit any Submission that NECA, in its sole discretion, advises to be false, inaccurate, misleading, disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, pornographic, vulgar, obscene, hateful, or racially or ethnically-motivated, or otherwise objectionable;
6.4.5. Harass, threaten, embarrass or cause distress or discomfort to another Site participant, user, or other individual or entity;
6.4.6. Distribute viruses or any other technologies that may harm the Site or the interests or property of our users and partners;
6.4.7. Harvest or otherwise collect information, including email addresses, about users or third parties whose information is made available on the Site, without their consent;
6.4.8. Use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission;
6.4.9. Impersonate or misrepresent your affiliation with any person, including without limitation, a NECA official or representative, chat or message board leader, guide or host;
6.4.10. Disrupt the normal flow of dialogue in a chat room or otherwise act in a manner that negatively affects other participants;
6.4.11. Post or transmit any unsolicited advertising or promotional materials other than the listing of items to be given away as a gift or for free pursuant to these Terms, or any other forms of solicitation anywhere on the Site; or
6.4.12. Intentionally or unintentionally violate any applicable local, state, national or international law, including without limitation, any regulations having the force of law while using or accessing the Site.
7. THIRD PARTY WEBSITES
8. DISPUTES WITH OTHER USERS
If you have a dispute with one or more users, you release NECA and its Affiliated Entities from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown including without limitation attorney’s fees, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You understand and agree that NECA may, in its sole discretion and at any time, limit, suspend, or terminate your password, user account, or use of the Site, and discard and remove any and all Submissions submitted or posted by you to any part of the Site, for any reason. NECA may also, in its sole discretion and at any time, discontinue the Site, in whole or in part, or limit or restrict any user access thereto, for any reason. NECA also reserves the right, in its sole discretion and at any time, to cancel unconfirmed accounts or accounts that have been inactive for an extended period of time. You understand and agree that NECA may take any one or more of these actions without any notice to you, prior or otherwise. Should NECA take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your user account, including your Registration Information and Submissions. You understand and agree that NECA shall not have any liability to you or any other person for any termination of your access to the Site and/or the removal of information concerning your user account.
You agree to indemnify and hold NECA and its Affiliated Entities harmless for any and all disputes, claims, damages, losses, and causes of action (including without limitation attorney’s fees) arising from these Terms, your use of this Site, your Submissions, or your violation or claimed violation of any law or rights of a third party, or any other breach or claimed breach of the Terms.
YOU AGREE THAT USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. THE SITE IS PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NECA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT. NECA DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE DOES NOT VIOLATE ANY IPR OF ANY PERSON. NECA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT NECA) ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE, AS WELL AS THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE ARE ANY DEFECTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NECA AND ITS AFFILIATED ENTITIES SHALL CREATE A WARRANTY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAY NOT APPLY TO YOU.
NECA is simply reposting information that you provide, without any ability or responsibility on the part of NECA to verify this information. NECA makes no warranties as to the accuracy of the information you provide. NECA furthermore makes no warranties of any kind relating to any customer’s ability to procure any item posted by another user of the Site.
12. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, SHALL NECA AND ITS AFFILIATED ENTITIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, ATTORNEY’S FEES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, BUSINESS OR PROFITS THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN ADVISED, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. WHILE NECA TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEBSITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, NECA AND ITS AFFILIATED ENTITIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR ON THE SITE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF NECA AND ITS AFFILIATED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO NECA, IF ANY, FOR ACCESSING AND USING THIS SITE.
13. INTERNATIONAL ACCESS
NECA makes no representation that the Site content, including merchandise offered for sale on the Site, if any, and its copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use by certain individuals or in certain countries. Those who choose to access the Site from locations outside of the United States of America do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. With respect to shipments of any merchandise to consumers, wherever they may reside, title to the merchandise and risk of loss shall pass to the buyer upon delivery of the merchandise to the common carrier.
14. COPYRIGHT NOTICE
NECA hereby states its intent to maintain any and all exemptions from liability that may be available under privacy and/or publicity law or copyright law. NECA does not necessarily stipulate that it is a service provider as defined in the Digital Millennium Copyright Act or the Communications Decency Act or elsewhere in the law of the United States or any state or territory within the United States.
If you believe that any Submission or any Site content has been copied from any content in which you claim a copyright interest in a way that constitutes an infringement of your copyright interest, or you can identify yourself as the subject of any Content and wish the Content in which you are the subject to be removed from the Site, please forward the following information to leo[at]necaonline[dot]com.
(a) Your name, address, telephone number, and email address;
(b) A description of the copyrighted work that you claim has been infringed or the work that contains your identity;
(c) The precise URL or a description of where the alleged infringing material is located;
(d) A statement by you that you have a good faith belief that the content you claim infringes your copyright interest was copied without your authorization or that of the copyright owner or his/her/its agent or proof that you are the subject identified in the content; and
(e) A statement by you, made under penalty of perjury, that all information in your notice is accurate and that you are either the copyright owner or authorized to act on the copyright owner’s behalf or you are the subject depicted in the content and that you do not wish the content to be displayed in the future on the Site. If you are authorized to act on behalf of the copyright owner, you must provide an electronic or physical signature of the copyright owner on a statement wherein he/she/it authorizes you to act on his/her/its behalf.
15. LIQUIDATED DAMAGES
You agree that, in light of the difficulty to quantify damages, because damages are often difficult to quantify, you will be liable to pay NECA the following amounts as liquidated damages in any actual legal action necessary for NECA to enforce these Terms, which liquidated damages you hereby accept as reasonable estimates of NECA’s damages for each specified violation of these Terms:
15.1. In each instance that you violate sections 6.4.1, 6.4.3, or 6.4.9, you agree to pay NECA $1,500 for each such violation;
15.2. In each instance that you violate sections 6.4.2, 6.4.4, 6.4.5, or 6.4.6 you agree to pay NECA $500 for each such violation;
15.3. If NECA establishes access limits for your user account or terminates your access or user account, you agree to pay NECA $150 for each instance in which you exceed such limits or for each day on which you access NECA in excess of such limits, whichever is higher;
15.4. You agree to pay NECA $50 for each unsolicited advertisement email, i.e. spam email, you send to NECA email addresses or through the Site;
15.5. If you violate sections 6.4.7 or 6.4.8, or otherwise aggregate, harvest, display, reproduce, or exploit any content on the Site other than your own content, for any purpose, in violation of these Terms without NECA’s prior express written consent, you agree to pay NECA $3,000 for each day on which you engage in such conduct.
15.6. You agree to pay NECA $150 for each violation of these Terms not specifically described above.
You otherwise agree to pay NECA’s any actual damages, to the extent that such actual damages can be reasonably calculated.
All Claims you bring against NECA must be resolved in accordance with this section. All Claims filed or brought contrary to this section shall be considered improperly filed. Should you file a Claim contrary to this section, NECA may recover reasonable attorney’s fees and costs, provided that NECA has notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim within thirty (30) days of such notice.
Any Claim must be filed within one (1) year after such Claim arose regardless of any status or law to the contrary. In the event any such Claim is not filed within such one (1) year period, such Claim shall be barred.
Any failure to act by NECA with respect to a breach by you or others does not waive NECA’s right to act with respect to subsequent or similar breaches.
Notwithstanding anything to the contrary, NECA reserves the right to seek the remedy of specific performance of any term of these Terms, or a preliminary or permanent injunction against the violation of these Terms or in aid of the exercise of any power granted in these Terms, or any combination thereof.
16.3. Captions and Headings. All captions, indices, titles, subject headings, section titles and similar items contained in these Terms are provided for the purpose of reference and convenience only and are not intended to be inclusive, definitive or to affect the meaning or content of these Terms.
16.4. Relationship. The relationship between the Parties is as set out in these Terms and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the Parties and neither shall have the power to bind the other, except as otherwise set forth herein.
16.5. Severability. If any of the provisions of the Terms are held illegal, inapplicable or non-executable by a court of competent jurisdiction, such provisions shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and remain enforceable and said ruling will not affect any other provision set forth in this the Terms and will not render such other provisions invalid, inapplicable or non-executable.
16.6. Compliance with Laws. You agree to comply with all applicable laws, rules and regulations in connection with your activities under the Rules.
16.7. Miscellaneous. You agree that no joint venture, partnership, employment, or agency relationship exists between you and NECA as a result of these Terms or your use of the Site. These Terms are subject to existing laws and legal process, and nothing contained in these Terms is in derogation of any obligation on our part to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by us with respect to such use.
16.8. Entire Agreement. These Terms set forth the entire understanding and agreement between you and NECA with respect to the subject matter of these Terms.