Wowzers Website Terms of Use

 

Acceptance

Welcome to Wowzers, LLC's website. These Terms of Use govern your use of www.Wowzers.com, login.wowzers.com, and any successor websites of the foregoing (collectively, the "Site"), any Wowzers software, downloaded from this Site or obtained elsewhere (the "Software"), and all of the services made available on the Site (the "Services").

Wowzers.com is a site devoted to education and fun. We are committed to allowing you to learn and have fun, without sacrificing your privacy. At Wowzers.com, we intend to give you as much control as possible over your personally identifiable information and strive to help you protect your privacy while using our services.

The purpose of our policy is to inform you about the types of information we gather about you online when you visit our site, how we may use that information, whether we disclose it to anyone, and the choices you have regarding our use of, and your ability to correct the information.

By using the Software, Services or visiting or browsing the Site, you acknowledge that you have read, understood, and agreed to be bound by these Terms of Use and any modifications that may be made to these Terms of Use from time to time. In addition, to the extent our Services or Software require you to set up an account with a password, if you are designated as the parent or legal guardian in the account, or are otherwise the person who first registers for a Service, you agree to be responsible for ensuring that all users on your account comply with these Terms of Use and any modifications that may be made to the Terms of Use from time to time. If you do not agree to these Terms of Use, you should not use the Services or Software, or visit or browse the Site.

These Terms of Use constitute a binding legal agreement between you and Wowzers, LLC ("Wowzers," "we," "us," and "our"). If you are using the Site, Services or Software, on behalf of any entity or person (including child), you represent and warrant that you are authorized to accept these Terms of Use on such entity's behalf or such person's behalf, and that such entity or person agrees to indemnify you and Wowzers for violations of these Terms of Use. Please read these Terms of Use carefully before accessing or using the Site, Software or the Services.

Modifications

We reserve the right to modify these Terms of Use at any time and in any manner at our sole discretion, including the fees for the Software or Services. You agree that we are not liable to you or to any third party for any modification of the Terms of Use.

Registration

Before you can use certain parts of the Software or Services, you may be required to register an account through the Site. You must be 18 years of age or older to register for a Wowzers account. You may, however, add or register additional users to use the Services, who are younger than 18 years old, but only if you are such users' parent or legal guardian, or are an authorized school employee with permission from the users' parent or legal guardian. You agree to provide true, accurate, current, and complete information about yourself and the users of the account as prompted by the Site's registration form (such information, being the "Registration Data"), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse to offer you any and all current or future use of the Services, Software and the Site. You agree that, if you provide any personally identifiable information about a child under age 13 in order to allow them to use the Site, Software or Services, that you are either (a) the parent/legal guardian of such child and that you consent to the child's use of the Site, Software and Service and agree to be bound to these Terms of Use with respect to the child's use or (b) an authorized school employee who has properly informed the child's parents or legal guardian, and received permission from the child's parent or legal guardian to allow the child to use the Site, Software and Service, and you agree to be bound to these Terms of Use with respect to the child's use. You understand that the privacy policy will apply to the child's use of the Site, Software and Service.

You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You are solely responsible for any activity related to your account. If you suspect any unauthorized use of your account, notify us immediately. You acknowledge and agree that we may preserve user information and may also disclose user information, if required to do so by law or if we believe, in good faith, that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Wowzers, LLC, its users, or the public. Without limiting the foregoing, parents, legal guardians, and school administrators who have registered accounts hereunder, understand that they are responsible for the acts and activities of their minor children in connection with any use of the Site, Software, and/or Software, and that the privacy policy will apply to their family's use of the foregoing. If you are a parent or legal guardian of a minor who is using the Site, Software, and/or Software in connection with a school or other educational facility without your permission, you must notify us immediately upon your knowledge of such use, otherwise you will be deemed to have provided permission for your child's use indirectly through your child's authorized school official and you agree to be bound to these Terms of Use with respect to your child's use.

Fee Based Services and Software

Some Services and Software may be offered to you on a fee basis. All fees are quoted and must be paid in U.S Dollars. If you elect to purchase fee-based Services or Software and transmit to Wowzers a purchase request, you warrant that your use of the particular credit card or other Wowzers accepted payment method is authorized and that all information that you submit to Wowzers, or any third party designated by Wowzers, is true and accurate (including, without limitation, your credit card number and expiration date), and you agree to pay all fees, including any applicable sales taxes, you incur. Any account name, password, or user ID supplied to you in connection with any fee-based Services or Software you purchase is personal to you and the members of your household, and you may not transfer or make available your account name, password, or user ID to others. Any distribution by you of such account name, password, and/or user ID may result in cancellation of the fee-based Services and Software without refund and the imposition of additional charges based on your unauthorized use.

The Wowzers Blog

All posts by the authors, guest authors, and visitors reflect personal thoughts and opinions which are not necessarily those of the company.

Licenses

When you post Content, you hereby grant (or warrant that the owner of the Content grants) us and each user of the Site, Software or the Services a royalty-free, perpetual, irrevocable, fully sublicensable, worldwide, non-exclusive right to use, reproduce, modify, translate, adapt, publish, create derivative works of, transmit, distribute, perform, display, delete (in whole or in part), and incorporate the Content for any purpose and without acknowledgement to you. By posting or providing Content, you represent and warrant that public posting and use of your Content by us and any of our users will not infringe on or violate the rights of any third party.

In addition subject to the terms of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable license to use the Software solely to use the Service to the extent you have the right to access the Service. Your right to access the Service will be limited by the terms of this Agreement. Except for this license granted to you, we retain all right, title, and interest in and to the Software, including all related intellectual property rights. The Software and Services are protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Software and/or Services; (b) rent, lease, or sublicense the Software and/or Services; nor (c) circumvent or disable any security or technological features or measures in the Software and/or Services. You may not export or re-export the Software and/or Services without (a) the prior written consent of Wowzers; and (b) complying with applicable export control laws and obtaining any necessary permits and licenses.

Usage Guidelines and Restrictions

You agree not to use the Site, Software or the Services to:

  1. harm minors in any way or write comments that in any way refer to person(s) under 18 years of age;
  2. upload, post, e-mail, or otherwise transmit Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements);
  3. upload, post, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
  4. frame the Site, Software or the Services, utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you must not engage in the practices of "screen scraping," "database scraping," or any other activity with the purpose of obtaining lists of users or other information.
  5. upload, post, e-mail, or otherwise transmit Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of any party;
  6. upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other forms of solicitation;
  7. upload, post, e-mail, or otherwise transmit any Content that contains personally identifying information (such as actual names, phone numbers, mailing addresses, e-mail addresses and URL), unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
  8. impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
  9. interfere with or disrupt the Services, Software, the Site, or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;
  10. intentionally or unintentionally violate any applicable local, state, national, or international law, "stalk" or otherwise harass another, or collect or store personal data about other users;
  11. use any automated means to access the Site, Software or the Services or collect any information from the Site, Software or the Services (including, without limitation, robots, spiders, or scripts); or

Termination

You agree that Wowzers, LLC, in its sole discretion, may terminate your password, account (or any part thereof), and use of the Site, Software and the Services, and remove and discard any Content within the Site, for any reason, including, without limitation, for lack of use or if Wowzers, LLC believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Wowzers, LLC may also in its sole discretion and at any time modify or discontinue providing the Site or the Services, or any part thereof, with or without notice. You agree that any modification or termination of your access to the Site, Software or the Services may be effected without prior notice, and you acknowledge and agree that Wowzers, LLC may immediately deactivate or delete your account and all related information and Content in your account and bar any further access to such information or to the Site, Software or the Services. Further, you agree that Wowzers, LLC shall not be liable to you or any third party for any modification or termination of your access to the Site, Software, or the Services.

Privacy

Any information submitted on the Site or the Services is subject to our Privacy Policy, the terms of which are incorporated into these Terms of Use. Our Privacy Policy may be found by clicking here. Please review our Privacy Policy carefully.

Disclaimers of Warranties; Limitations on Liability

The Site, Software, and the Services (including all Content) are provided "as is"; Wowzers, LLC makes no representations or warranties of any kind with respect to the Services, the Content, the Site, the Software, or any contents therein. Wowzers, LLC assumes no liability or responsibility for any errors or omissions in providing the Services, the Site, the Software or the Content, any losses or damages arising from the use of the Content, or any conduct by users of the Site. WOWZERS INC. EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE SERVICES, THE SOFTWARE, THE CONTENT, AND THE SITE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AUTHENTICITY, TITLE, AND NON-INFRINGEMENT. In addition, Wowzers, LLC does not represent or warrant that the information on or accessible via the Site or Software, or through the Services is complete, current or will be updated or corrected. Wowzers does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the site or any hyperlinked site or featured in any banner or other advertising. While Wowzers attempts to make your access and use of the site, the services, and the software safe, Wowzers cannot and does not represent or warrant that the site, the software, or its server(s) are free of viruses or other harmful components; therefore, you should use industry recognized software to detect and disinfect viruses. WOWZERS INC.'S AND ITS AFFILATES', SUPPLIERS', AND THEIR RESPECTIVE OFFICERS', DIRECTORS', STOCKHOLDERS', EMPLOYEES', AGENTS', AND REPRESENTATIVES' LIABILITY UNDER THESE TERMS OF USE IS LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. WOWZERS INC. AND ITS AFFILATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES WILL NOT BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, AND LOSS OF PROFITS, REGARDLESS OF WHETHER THESE PARTIES HAD ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. WOWZERS INC.S' AND ITS AFFILATES', SUPPLIERS', AND THEIR RESPECTIVE OFFICERS', DIRECTORS', STOCKHOLDERS', EMPLOYEES', AGENTS', AND REPRESENTATIVES' TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICES, THE SOFTWARE, THE CONTENT, THE SITE OR THESE TERMS OF USE, WHETHER IN CONTRACT OR IN TORT, SHALL NOT EXCEED $100. EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF USE BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE FEES WE CHARGE, IF ANY, AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS OF USE. Some states do not allow the foregoing limitations of liability, so they may not apply to you. ANY AND ALL PORTIONS OF THIS DISCLAIMER SHALL AUTOMATICALLY APPLY TO ALL IMPROVEMENTS AND/OR AMENDMENTS AS THEY APPEAR ON THE SITE, SERVICES AND/OR THE SOFTWARE.

If you are dissatisfied with the Site, Services and/or Software, or with any terms, conditions, rules, policies, guidelines or practices of using the Site, Services and/or Software, your sole remedy is to discontinue using the Site, Services and/or Software.

Indemnity

You agree to indemnify and hold Wowzers, LLC or its directors, officers, employees, agents, representatives, partners, or affiliates harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, arising out of, resulting from or connected with the use, modification, misinterpretation, misuse, or reuse by you of the Site, the Software, the Services, or Content, including without limitation these Terms of Use.

Links and Advertising

We may provide, or third parties may provide, links to other Web sites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us, with respect to such sites. WOWZERS INC. IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE CONTAINED OUTSIDE THE SITE.

Your correspondence or business dealings with, or participation in promotions of, other users, advertisers, or partners found on or through the Site, Software or the Services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such user, advertiser, or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site, Software or the Services.

Dispute Resolution

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and WOWZERS agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Website or Service.

By your access of and use of the Website and Service you hereby specifically acknowledge, agree and consent that you waive your right to a trial, by jury or otherwise, and that you agree that any suit, action, proceeding, dispute, controversy or claim ("Dispute") arising out of or relating to this Agreement or any of the transactions contemplated herein or related to the Website or Service (including without limitation, statutory, equitable or tort claims) will be dealt with in accordance with the following procedures. All parties shall first attempt to negotiate all Disputes informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations shall commence following the receipt of a notice in writing by one of the parties sent to the other. WOWZERS will send its notice to your billing address and email you a copy to the email address you have provided to us. You may send any notice to WOWZERS to the address listed below.

If the Dispute is not resolved through informal negotiations the Dispute (except those Disputes expressly excluded below) shall be finally and exclusively resolved by binding arbitration before a sole arbitrator. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, any arbitration shall be initiated in Cook County, Illinois, using the English language in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association ("AAA") then in effect, by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by an arbitrator rather than a court. The prevailing party in any arbitration or other proceeding arising under these Terms of Service shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. Use of the Website Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

The parties agree that any arbitration shall be limited to the Dispute between you and WOWZERS individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

 

Jurisdiction and Choice of Law

To the extent not covered by the Dispute Resolution provisions above, any disputes between you and WOWZERS shall be subject to the exclusive jurisdiction and venue of the courts located in Chicago Illinois, and shall be governed by, and will be construed under, the law of the United States of America and the law of the State of Illinois, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree that if you choose to access wowzers.com from outside of the United States, other laws may apply and those laws shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof.

Release

In the event that you have a dispute with one or more users of the Site, Software or the Services, you release Wowzers, LLC and its stockholders, directors, officers, employees, agents, representatives, partners, and affiliates from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, 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."

Claims of Copyright Infringement

Wowzers, LLC respects the intellectual property rights of others, and requires that the people who use the Site, Software and the Services do the same. It is our policy to respond promptly to claims of intellectual property misuse.

If you believe that your work has been copied and is accessible on the Site, Software or the Services in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:

  1. the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;
  2. identification of the copyrighted work that you claim has been infringed;
  3. identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
  4. your name, address, telephone number, and e-mail address;
  5. a statement by you that you have a good faith belief t hat the disputed use is not authorized by the copyright owner, its agent, or the law;
  6. a statement made under penalty of perjury that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.

If we receive such a claim, we reserve the right to refuse or delete Content as described under these Terms of Use and to terminate a user's account. Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act OF 1998 ("DMCA") is:

Wowzers, LLC
1106 2nd Street #188
Encinitas, CA 92024

After receiving a claim of infringement, we will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will take reasonable steps promptly to notify the user that we have removed or disabled access to such material.

Upon receipt of a proper counter notification under the DMCA, we will promptly provide the person who provided the initial notification of claimed infringement with a copy of the counter notification and inform that person that we will replace the removed material or cease disabling access to it in 10 business days.

Unless our designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on the Site, Software or the Services, we will replace the removed material and cease disabling access to it.

You may provide us with a counter notification by providing our copyright agent the following information in writing:

  1. your physical or electronic signature;
  2. 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;
  3. a statement under penalty of perjury that you have 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;
  4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which we may be found and that you will accept service of process from the person who provided the initial notification of infringement.

 

Termination of Agreement and Survivability of Terms

This Agreement is effective until terminated. WOWZERS may terminate this Agreement with or without notice to you by terminating your Account as set forth herein. You may terminate this Agreement and your Account by following the procedures set forth herein or on the WOWZERS website. The provisions of Sections 1, 2, 5 through 7, 9 and 13 through 21 shall survive any termination of this Agreement.

Severability

If any part of these Terms of Service are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect.

Complete Agreement

These Terms of Service, including the documents expressly incorporated by reference, constitute the entire Agreement between you and WOWZERS with respect to its subject matter. This Agreement supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and WOWZERS with respect to its subject matter and you represent that you have not relied on any such communications in accepting this Agreement.

General Provisions

Our performance of these Terms of Service is subject to existing laws and legal process, and nothing contained in these Terms of Service is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of wowzers.com or information provided to or gathered by WOWZERS with respect to such use.

Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.

Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of WOWZERS shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of WOWZERS.

The parties hereby acknowledge and agree that WOWZERS would be irreparably damaged if these Terms of Service were not specifically enforced. Therefore WOWZERS shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Service, in addition to such other remedies as WOWZERS may otherwise have available to it under applicable laws. 

Questions

Please direct any questions regarding these Terms of Use to: info@wowzers.com.  

You may also contact us at:

Wowzers, LLC
1106 2nd Street #188
Encinitas, CA 92024
(312) 273-1340