Diamondtime* Terms of Service
Last Modified: 2013-04
These terms represent the contract between you and Diamondtime LLC when you use Diamondtime's site, services, and products. If you have any questions or suggestions, feel free to .
1. Accepting the Terms of Service
2. Modifications to this Agreement
Diamondtime reserves the right, in its sole discretion, to modify this Agreement at any time by posting a revised Agreement through the Services and by providing notice to you that this Agreement has changed, generally via email where practicable, and otherwise through the Services. You are responsible for reviewing and becoming familiar with any modifications to this Agreement. Modifications are effective when posted, and your use of the Services following any such posted modification and notice of same constitutes your acceptance of the terms and conditions of this Agreement as modified. Note that, if you have prepaid for any Paid Services (as defined below) prior to a modification of this Agreement, your use of such prepaid Paid Services is governed by the version of this Agreement in effect at the time Diamondtime received your prepayment.
As Diamondtime* grows and improves, we might have to make changes to the Terms of Service. When we do, we'll let you know. We're also going to make it a practice to post old versions so it's easy to see changes/additions/deletions. To see old versions, scroll down to the end of this document.
3. Use of the Services
No individual under the age of thirteen (13) may use the Services or provide any information to Diamondtime or otherwise through the Services (including, for example, a name, address, telephone number, or email address). You otherwise may only use the Services if you can form a binding contract with Diamondtime and are not legally prohibited from using the Services.
Service Changes and Limitations:
The Services change frequently, and their form and functionality may change without prior notice to you. Diamondtime retains the right to create limits on and related to use of the Services in its sole discretion at any time with or without notice. Diamondtime may also impose limits on certain Services or aspects of those Services or restrict your access to parts or all of the Services without notice or liability. Diamondtime may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content (as defined below). Diamondtime may also suspend Accounts (as defined below) at any time, in its sole discretion.
Limitations on Automated Use:
You may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of Diamondtime and/or its service providers; (b) probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Diamondtime (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Diamondtime; (d) scrape the Services, and particularly scrape Content (as defined below) from the Services, without Diamondtime's express prior written consent; (e) use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or email headers; or (f) interfere with, or disrupt, (or attempt to do so), the access of any Subscriber, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services.
4. Registration, Diamondtime* URLs, and Security
As a condition to using certain of the Services, you may be required to create an account (an "Account") and select a password and Diamondtime* username, which will serve as a default URL of the form [username].DiamondTime.com (a "Diamondtime* URL"). You may also select new Diamondtime* URLs for each deck you create.
You should provide Diamondtime with accurate, complete, and updated registration information, particularly your email address, and failure to do so may result in suspension of your Account.
It's really important that the email address associated with your Diamondtime* Account is accurate and up-to-date. If you ever forget your password — or worse, fall victim to a malicious phishing attack — a working email address is often the only way for us to recover your account.
You agree that you shall not select or use as a Diamondtime* URL a name of another person or entity with the intent to impersonate that person or entity or with the intent to otherwise cause confusion as to the origin or provenance of your Account. Diamondtime reserves the right to refuse registration of, cancel, or modify a Diamondtime* URL in its sole discretion.
You are also responsible for maintaining the confidentiality of your Account password and for the security of your Account, and you will notify Diamondtime immediately of any actual or suspected loss, theft, or unauthorized use of your Account or Account password.
6. Content and Subscriber Content
For purposes of this Agreement: (1) the term "Content" means a creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Services; (2) the term "Subscriber Content" is all Content that is posted or otherwise provided or transferred to the Services by a Subscriber (including, without limitation, by you); and Content also includes, without limitation, all Subscriber Content.
Subscribers retain ownership of all intellectual property rights in their Subscriber Content, and Diamondtime and/or third parties retain ownership of all intellectual property rights in all Content other than Subscriber Content.
You retain ownership of any intellectual property you post to Diamondtime.
Subscriber Content License to Diamondtime:
When you transfer Subscriber Content to Diamondtime through the Services, you give Diamondtime a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of such Subscriber Content. The rights you grant in this license are for the limited purpose of operating the Services in accordance with their functionality, improving the Services, and allowing Diamondtime to develop new Services. The reference in this license to "derivative works" is not intended to give Diamondtime itself a right to make substantive editorial changes or derivations, but does enable Diamondtime Subscribers to redistribute Subscriber Content from one Diamondtime* deck to another in a manner that allows Subscribers to, e.g., add their own text or other Content before or after your Subscriber Content ("Customizing Content").
When you upload your creations to Diamondtime, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Diamondtime* Dashboard, etc.). We never want to do anything with your content that surprises you.
Something else worth noting: Diamondtime* decks may be associated with books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.
You also agree that this license includes the right for Diamondtime to make all publicly-posted Content available to third parties selected by Diamondtime, so that those third parties can distribute and/or analyze such Content on other media and services.
Note also that this license to your Subscriber Content continues even if you stop using the Services, primarily because of the social nature of Content shared through the Services — when you post something publicly, others may choose to comment on it, making your Content part of a social conversation that cannot later be erased without retroactively censoring the speech of others.
One thing you should consider before posting: When you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it.
You also agree that you will respect the intellectual property rights of others, and represent that you have all of the necessary rights to grant us this license for all Subscriber Content you submit to the Services.
Content License to You:
As a Subscriber of the Services, Diamondtime grants you a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, and create derivative works of Content solely in connection with your use of, and in accordance with the functionality and restrictions of, the Services (including, without limitation, Paid Services, as defined below). This means, for example, that we license Content to you so that you can Customize it for yourself and your followers.
Compliance with Community Guidelines:
You agree that you won't post Subscriber Content that violates, or otherwise use your Account in ways that violate, Diamondtime's Community Rules.
Termination and Deletion:
On termination of your Account or upon your deletion of particular pieces of Subscriber Content from the Services, Diamondtime shall make reasonable efforts to make such Subscriber Content inaccessible and cease use of it; however, you acknowledge and agree that: (a) caching of, copies of, or references to the Subscriber Content may not be immediately removed; (b) such removed Subscriber Content may persist in backups (not available to others) for a reasonable period of time; and (c) such removed Subscriber Content may be available (and stored on our servers) through the accounts of other Subscribers, such as because of Customizing.
7. Special Provisions for Application Developers
If you develop software or services based on the Services or any Content, whether using the Diamondtime Application Programming Interface or not, you will agree to and comply with the Diamondtime Application Developer and API License Agreement.
8. Use of Trademarks
Any use of Diamondtime's trademarks, branding, logos and other such assets in connection with the Services shall be in accordance with the Diamondtime Trademark Guidelines.
9. Paid Services
Some of the Services require payment of fees (the "Paid Services," including without limitation Premium Publisher Tools). All fees are stated in United States dollars. You shall pay all applicable fees, as described in the applicable Services, in connection with such Services, and any related taxes or additional charges.
Paid Services are limited licenses for you to use particular for-pay aspects of the Services. Usage of terms like sell, sale, buy, purchase, or similar terms all refer to your acquisition of a license to use Paid Services, and do not represent any transfer of any right, title, or ownership interest of any kind. You may not relicense, resell, transfer, or exchange Paid Services within or outside of the Services, except as expressly allowed by the rules of the Services.
Diamondtime may, in its sole discretion, modify the functionality of, or eliminate, Paid Services, or the terms and conditions under which Paid Services are provided.
Purchases of Paid Services are final and non-refundable (particularly those Paid Services that may be used immediately), except at Diamondtime's sole discretion and in accordance with the rules governing each such Paid Service. Termination of your Account or your rights under this Agreement may result in forfeiture of existing Paid Services.
Diamondtime may change its prices for Paid Services at any time. To the extent applicable, Diamondtime will provide you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Paid Service and/or by sending you email notification. If you do not wish to pay the new prices, you may choose not to purchase, or to cancel, the applicable Paid Service prior to the change going into effect.
10. Warranty Disclaimer; Services Available on an "AS-IS" Basis
Your access to and use of the Services or any Content is at your own risk. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, Diamondtime DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Diamondtime makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. Diamondtime also makes no representations or warranties of any kind with respect to Content; Subscriber Content, in particular, is provided by and is solely the responsibility of, the Subscribers providing that Content. No advice or information, whether oral or written, obtained from Diamondtime or through the Services, will create any warranty not expressly made herein.
11. Release From Liability
You release, to the fullest extent permitted by law, Diamondtime, its directors, officers, shareholders, employees, representatives, consultants, agents, suppliers, and/or distributors from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following:
- Disputes between Subscribers, including those between you and other Subscribers.
- Third party sites and services, including content found on such sites and services.
- Disputes concerning any use of or action taken using your Account by you or a third party.
- Claims relating to the unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content.
- Claims relating to in any way to any face-to-face meetings in any way related to Diamondtime at any venues ("Mentor Meetings"), including without limitation claims related to the actions or omissions of any Subscribers or third parties who organize, attend, or are otherwise involved in providing services around the use of Diamondtime* decks; Diamondtime does not sponsor, oversee, or in any manner control mentor service offerings.
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."
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Diamondtime, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF: PROFITS, REVENUE, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR SUBSCRIBER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Diamondtime HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF Diamondtime AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (US$50.00) OR THE AMOUNT YOU PAID US TO USE THE APPLICABLE SERVICE(S).
Either party may terminate this Agreement at any time by notifying the other party. Diamondtime may also terminate or suspend your access to or ability to use any and all Services immediately, without prior notice or liability, for any reason or no reason, including but not limited to if you breach any of the terms or conditions of this Agreement. In particular, Diamondtime may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement.
Upon termination of your access to or ability to use a Service, including but not limited to suspension of your Account on a Service, your right to use or access that Service and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to Diamondtime or any third party.
14. Legal Disputes
You and Diamondtime agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Services in accordance with this Section or as you and Diamondtime otherwise agree in writing. Before resorting to litigation, we
This Agreement, as modified from time to time, constitutes the entire agreement between you and Diamondtime with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof and constitutes the entire and exclusive agreement between the parties. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by you except with Diamondtime's prior written consent. Diamondtime may assign this Agreement in whole or in part at any time without your consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Diamondtime in any respect whatsoever. Any notice to Diamondtime that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to Diamondtime LLC.
16. Special Provisions for Subscribers Located Outside of the United States
Diamondtime provides global products and services and enables a global community for individuals to share and follow the things they love. Diamondtime's operations are, however, located in the United States, and Diamondtime's policies and procedures are based on United States law. As such, the following provisions apply specifically to Subscribers located outside of the United States: (1) you consent to the transfer, storage, and processing of your information, including but not limited to Subscriber Content and any personal information, to and in the United States and/or other countries; and (2) if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department's list of "Specially Designated Nationals," you agree that you will not conduct any commercial activities using or through the Services.
17. DMCA Copyright Policy
Diamondtime has adopted the following policy toward copyright infringement on the Services in accordance with the Digital Millennium Copyright Act (a copy of which is located at http://www.loc.gov/copyright/legislation/dmca.pdf, the "DMCA"). The address of Diamondtime's Designated Agent for copyright takedown notices ("Designated Agent") is listed below.
Reporting Instances of Copyright Infringement:
If you believe that Content residing or accessible on or through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent at the address below:
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that Diamondtime is capable of finding it and verifying its existence.
- Contact information for the notifying party (the "Notifying Party"), including name, address, telephone number and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
After removing material pursuant to a valid DMCA notice, Diamondtime will immediately notify the Subscriber responsible for the allegedly infringing material that it has removed or disabled access to the material. Diamondtime reserves the right, in its sole discretion, to immediately terminate the account of any Subscriber who is the subject of repeated DMCA notifications.
Submitting a DMCA Counter-Notification:
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with Diamondtime by providing the following information to the Designated Agent at the address below:
- The specific URLs of material that Diamondtime has removed or to which Diamondtime has disabled access.
- Your name, address, telephone number, and email address.
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the federal district courts located in New York County, New York if your address is outside of the United States), and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
- The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- Your signature.
Upon receipt of a valid counter-notification, Diamondtime will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Diamondtime does not receive any such notification within ten (10) days, we may restore the material to the Services.