Revised as of July 31, 2014
Legal Agreement; Revisions
This website, located at www.themarkhotel.com (the "Website"), is operated on behalf of Mark Propco, LLC ("MP", "we," "us" or "our").
We provide use of the Website subject to these Terms and Conditions of Use (the "Terms"), which are effective as of the date set forth above. These Terms apply to all users of the Website, as well as to participants in any purchases made at, or activities or services provided by us at or in connection with, our hotel facilities, hotel services and amenities, restaurant and bar, meeting rooms, or any other goods or services that you purchase, rent, lease, occupy, use, pay for, reserve or inquire about from MP (the "Services").
These Terms are a legal agreement between you and us, and they contain important information on your legal rights, remedies and obligations. By accessing, browsing or otherwise using the Website or the Services, you: (i) acknowledge that you have read and understand, and are agreeing, on your own behalf and on behalf of your minor children using the Website or the Services, to be bound by these Terms and that you are agreeing to comply with all applicable laws, rules and regulations; and (ii) represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. You further acknowledge and agree that your access to and use of the Website and the Services are valuable benefits that you receive by agreeing to, and complying with, these Terms. You may not access, browse or use the Website or its Services and you should discontinue these activities immediately, if you: (a) do not agree to these Terms; or (b) are prohibited from accessing or using the Website or the Services by applicable law.
We may change or revise these Terms at any time, for any reason at our sole discretion and without notice, simply by posting such changes or revisions on this page. Your continued use of the Website or the Services after a posted change or revision in these Terms signifies your acceptance of any such change or revision. For this reason, please visit this page on a regular basis to ensure that you are familiar with the most recent version of these Terms. In the case of any violation of these Terms, we reserve the right to seek all remedies available for such violation, whether by law, in equity or otherwise. Your failure to follow these Terms may result in suspension or termination of your access to the Website or the Services, without notice, in addition to other available remedies.
You can address your questions or concerns regarding these Terms to email@example.com.
MP and/or its affiliates, service providers, vendors, contractors, sponsors, advertisers, licensors and/or licensees (collectively, the "MP Parties") are the exclusive owners or licensees of all content and materials on the Website ("Website Content") and of all related intellectual property rights, including all copyrights, moral rights, trademark rights, trade dress rights, rights of publicity and patent rights therein or thereto. The Website Content includes all features, functions, services, software, algorithms, designs, objects, documentation, know-how, code, data, art, graphics, animation, videos, photographs, domain names, images, e-mail addresses, icons, text, music, sound effects, audio and/or audio-visual elements, downloadable materials, look-and-feel, design, layout, organization, presentation, user interface, navigation and stylistic convention of the Website. The entire Website Content is the subject of a copyright as a collective work and elements of the Website Content are the subject of copyrights as individual works, under the United States and other copyright laws. The collective work includes works that are licensed to the MP Parties.
All trademarks, service marks and trade names of MP used on or in connection with the Website or the Services (including THE MARK, THE MARK HOTEL, THE MARK NEW YORK, THE MARK RESTAURANT, (THE) MARK BAR, THE MARK BAR AND RESTAURANT, MARK CAFÉ and other marks and names) are trademarks of MP (collectively, the "Marks") and are the exclusive property of MP. Unauthorized use of any of the Marks, or of any word, term, name or symbol that dilutes, or is likely to cause confusion or mistake with respect to, the Marks is strictly prohibited by law. All trade names, trademarks and service marks not owned or licensed by MP that appear on the Website are the property of their respective owners.
You may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise exploit, through any means or media, any of the Marks, except as may be allowed by The Trademark Act of 1946 (Lanham Act), 15 U.S.C. §1051 et seq.
You do not acquire any ownership interests in the Website Content or the Marks by accessing, browsing or otherwise using the Website or the Services.
Your Use and Your Content; License Grant; Right to Monitor and Editorial Control
You may access, browse and use the Website and the Website Content only for your personal, non-commercial use, on a single computer or other Internet-compatible device. Subject to these Terms or any expressly stated restrictions or limitations relating to specific material, you may also electronically copy, download and print only such limited number of hard copies of discreet excerpts of the Website or the Website Content as needed for the sole purposes of making a Service inquiry or entering into a reservation, rental, lease or purchase. You may be able to share links to Website pages via the "Share Link" or "Email" tools, if displayed on the Website, or as otherwise provided in the "Linking to the Website" section of these Terms. Other than the foregoing, you may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise use or exploit, through any means or media, any of the Website Content, except as may be allowed by Sections 107, 108 and 110 of Title 17 of the United States Code, 17 U.S.C. §§107-108 and 110 ("Your Exempt Use"). Your Exempt Use will, at all times, be prominently accompanied by: (i) a copyright notice in the form identical to the copyright notice appearing on the Website Content that is the subject of Your Exempt Use; and (ii) a credit line in the form of the phrase "Accessed on" followed by the date of your access and the URL of the Website where you accessed such Website Content. You agree not to change or delete any proprietary notice from materials copied, downloaded or printed from the Website.
No right, license or permission is granted to you by these Terms, including any right, license or permission to copy, reproduce, distribute, publish, transmit, download, display in public or modify the Website or any of the Website Content in any manner, to any extent, by any means, in any medium or for any purpose, other than those expressed herein.
You must be over the age of thirteen (13) to submit an inquiry to or be a visitor of the Website or otherwise submit or provide any personally identifiable information to MP. By accessing or using the Website, you represent and warrant that you are over the age of thirteen (13) or are visiting the Website under the supervision of your parent or guardian. Pursuant to 47 U.S.C. §230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the GetNetWise website, http://www.getnetwise.org.
Certain features of the Website may allow you to post, upload, transmit or submit certain materials, content, comments, suggestions, information or ideas to or through the Website ("Your Content"). We do not ask for, nor do we wish to receive, any confidential, secret or proprietary information or other material from you through the Website, by e-mail or in any other way. By providing Your Content to us, you: (i) represent and warrant that Your Content is original to you, that you own or otherwise control all of the rights in Your Content, or that you have the rights necessary to grant the license in this section; (ii) represent and warrant that Your Content does not violate any rights, including the rights of privacy, of any party and does not otherwise violate the law; (iii) grant to us and the MP Parties a world-wide, non-exclusive, fully paid-up, royalty-free, unrestricted, perpetual, irrevocable, fully transferrable, assignable and fully sub-licensable (through multiple tiers) right and license to copy, reproduce, edit, modify, distribute, transmit, display, perform, make, have made, publish, sell, offer for sale, import, adapt, create derivative works from and otherwise use Your Content for any purpose that we may choose, in our sole discretion, and through any means or media, whether now existing or subsequently developed, and without any compensation to you or any third party (it being understood that the foregoing shall include the right to exploit any and all intellectual property or proprietary rights in Your Content including rights protected under applicable copyright, trademark, trade secret, patent and other laws throughout the world); (iv) agree that we and the MP Parties will not be liable for any copying, reproduction, modification, adaptation, translation, collection, compilation, recompilation, preparation of summaries, abstracts, derivative works or materials, or any publication, distribution, display, disclosure, sale, licensing, or other use or commercial exploitation, of any ideas or other Your Content, or any tangible or intangible subject matter similar to, or using, incorporating, derived from or based on, any Your Content, in whole or in part; and (v) indemnify and hold harmless us and the MP Parties for and against any and all claims, actions and damages (including court costs, legal fees, accounting fees and amounts paid in settlement) that are related to or result from your use of the Website, Your Content or its posting on, or submission to, the Website, and/or your violation of these Terms. You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS PARAGRAPH, PLEASE DO NOT SHARE, SUBMIT OR POST ANY OF YOUR CONTENT ON OR THROUGH THE WEBSITE.
We cannot be responsible for maintaining Your Content, and we may remove Your Content from the Website at any time, for any or no reason, and without notice to you. We reserve the right, but do not have an obligation, to monitor and/or review all materials posted to the Website, or through the Website's services or features, by its users, and we are not responsible for any such materials. However, we further reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or remove any information or materials, in whole or in part, that in our sole discretion are objectionable or in violation of these Terms or applicable law. We may also impose limits on certain features or restrict your access to part or all of the Website or its features or services, without notice or penalty if we believe that you are in breach of these Terms or applicable law, or for any other reason, all without notice or liability.
You warrant and agree that, while accessing or using the Website, you will not yourself, and will not induce, assist or cause others to, directly or indirectly, for any purpose and by any means or in any form or medium whatsoever:
- • download, archive, store, copy, reproduce, compile, recompile, use, modify, adapt, translate or prepare any summaries, abstracts, derivative works or materials of the Website or any Website Content, in whole or in part (except that you may exercise the limited rights to access, view and print in accordance with the terms above);
- • access, use, license, sell, transfer, disclose, publish, transmit, display, distribute, provide or permit access to, in any way for any public or commercial purpose, the Website or any Website Content, or any modifications, adaptations, translations, summaries, abstracts, derivative works or materials thereof;
- • collect, compile or recompile any Website Content, including any photographs, listings of Services, designs, descriptions, references, images, terms of rental, purchase, sale, or lease, prices or other data, information or other content obtained or derived from or through the Website;
- • impersonate any person or entity or misrepresent your affiliation with any person or entity, whether actual or fictitious, including anyone associated with the Website, the MP Parties or otherwise affiliated with us;
- • use an inappropriate username or screen name;
- • insert your own or a third party's advertising, branding or other promotional content into any Website Content;
- • obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Website through any means, including through means not intentionally made publicly available or provided through the Website;
- • engage in any automatic or unauthorized means of accessing, logging-in or registering on the Website, if applicable, or obtaining lists of users or other information from or through the Website, including any information residing on any server or database connected to the Website;
- • use the Website in any manner that could interrupt, damage, disable, overburden or impair the Website or interfere with any other party's use and enjoyment of the Website, including sending mass unsolicited messages or "flooding" servers;
- • use the Website or the Services in violation of our intellectual property or other proprietary or legal rights, or the rights of any third party;
- • use the Website or the Services in violation of any applicable law or for any unlawful purpose;
- • attempt (or encourage or support anyone else's attempt) to circumvent, reverse-engineer, decrypt, or otherwise alter, or interfere with, the Website; or
- • post, transmit, submit, publish or otherwise disseminate through the Website any of Your Content or other material that, as we determine in our sole discretion: (i) is unlawful, harmful, harassing, false, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (ii) is derogatory or harmful to our reputation or any of our respective officers, members, employees, representatives, licensors, service providers, suppliers, visitors or users in any way; (iii) is harmful to children in any manner; (iv) is for the benefit of any third party; (v) is for purposes of any public or commercial use or exploitation, including use by or for the benefit of any competitor of the MP Parties; (vi) consists of or contains any viruses, bugs, worms, Trojan horses or other harmful computer code; (vii) contains any impersonation, misrepresentation of your identity or the source or affiliation of the material or Your Content, or incorrect identification information; or (viii) consists of or contains any commercial solicitation, mass mailing, junk mail, spam, chain letter or political campaign material.
Your Account and Your User Information
You are solely responsible for maintaining the confidentiality of Your User Information. You are also solely responsible for any and all activities that occur under Your Account or Your User Information. You must notify us immediately of any suspected or actual unauthorized use of Your Account or Your User Information, and of any and all other security breaches.
We reserve the right to terminate Your Account or to refuse the Services to you, without prior notice to you, at any time and for any or no reason. Without limiting the above, if you are a repeat infringer or violator, we will, in appropriate circumstances, permanently terminate Your Account and/or prohibit our use of the Services and remove Your Content from the Website. You have the right to cancel Your Account at any time. You may cancel Your Account by following the instructions on the Website. Accounts terminated by us for any type of abuse, including a violation of these Terms, may not be reactivated.
All Service reservations that are placed on or through the Website are subject to our acceptance, in our sole discretion. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your reservation.
No warranties are made by the MP Parties with respect to any of the Services that may be provided, featured, endorsed, sold or distributed on or through the Website. You agree that the MP Parties are not liable or responsible to you with respect to any advice, activities, and/or Services that may be provided, featured, endorsed, sold or distributed on or through the Website, including illegal, offensive or illicit materials or items, even if such materials or items violate these Terms. 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."
We strive to provide accurate pricing information regarding the Services that may be available through the Website. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any reservations placed for a Service whose price was incorrectly posted on the Website as a result of an error. If this occurs, we will notify you. In addition, we reserve the right, at our sole discretion, to correct any error in the stated price or revise the pricing for Services offered through the Website at any time. Unless otherwise noted, all currency references are in U.S. dollars.
YOU ACKNOWLEDGE AND AGREE THAT ANY CHARGES FOR SERVICES RESERVED THROUGH THE WEBSITE ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
We may, from time to time, modify, amend, or supplement our billing methods, and such changes shall be effective immediately upon posting in these Terms or elsewhere on the Website.
Information and User Generated Comments Not Provided or Endorsed By Us
Any and all information, comments, statements, links or other content placed on the Website or on a third party website (such as www.tripadvisor.com) that is displayed on the Website by visitors to the Website or such third party site, including advice and opinions, are the views and responsibility of the poster and do not necessarily represent the views or opinions of the MP Parties. We do not necessarily verify, encourage, agree, endorse, support or sanction any of the content placed on the Website or on a third party website that is displayed on the Website by visitors to the Website or such third party site, including comments, opinions, statements or links posted on forums, blogs, bulletin boards, social network sites or otherwise. You agree that the MP Parties are not responsible and shall have no liability to you with respect to any information, comments, statements, links, communications or other content posted by visitors to the Website or on a third party website that is displayed on the Website, including any offensive, defamatory, or illicit materials, even if such materials are in violation of these Terms. You shall not submit any content protected by any intellectual property or other third party right without the express permission of the owner.
To the extent that the Website provides users access to resources, including online tools, calendaring, email, bookmarks, other personalization features, or Service offerings, we assume no responsibility or liability for the accuracy or effectiveness of any such information or the timeliness, deletion, misdelivery or failure to store any user communications or personalization data or settings. All such risks shall be borne by you.
Linking to the Website
You agree that if you include a link to the Website: (a) such link shall open in a new browser window and shall link to the full version of an HTML-formatted page of the Website; (b) any text-only link must clearly be marked "The Mark"; (b) the appearance, position and other aspects of either the link or the host website may not be such as to damage or dilute the goodwill associated with the MP Parties' names or trademarks; (c) the appearance, position and other aspects of either the link or the host website may not create the false appearance that an entity other than MP is associated with or sponsored by us; and (d) you may not link directly to any Website Content, by, for example and without limitation, "in-line" linking or "deep-linking" methods, or in any manner causing the Website, or any page of the Website, to be "framed," surrounded or obfuscated by any third-party content, materials or branding. We may, at any time and for any or no reason, require that any link to the Website be discontinued and removed and revoke your right to link to the Website.
We are not responsible for the information or materials contained on any website that is not this Website. Links to this Website are provided for convenience of reference only and are not intended as an endorsement by us of the organization or individual operating a host website or a warranty of any type regarding a host website or the information on a host website.
We administer, control and operate the Website from our offices in the State of New York, the United States of America. The Website is accessible worldwide; however, some of its features or functions may not be available or appropriate for use outside of the United States and/or may not be available to all persons or in all geographic locations. We make no representation that the Website and the Website Content are appropriate or authorized for use in all countries, states, provinces, counties or any other jurisdictions. Your access and use of the Website may not be legal in your jurisdiction. If you choose to access, browse or use the Website, you do so on your own initiative and risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. We reserve the right to limit, in our sole discretion, the provision of any feature or function of the Website to any person and geographic area. Any offer for any Service, feature or function made on the Website is void where prohibited.
The Website provides information of a general nature only and you are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any person may take based on any information or guidance provided on or through the Website. We attempt to provide accurate descriptions and representations of Services on the Website. We do not warrant, however, that the descriptions and representations are accurate, complete, reliable, current or error-free. If a Service offered on the Website is not as described, your sole remedy is to seek redress through The Mark Hotel's applicable policy.
With the exception of the limited license granted in these Terms to Your Content, we do not obtain or control any rights in, and do not exert editorial control over, Your Content. We do not independently verify the representations and warranties made by the users with respect to Your Content.
We do not assume responsibility for, make any representation or warranty of, or otherwise guarantee the accuracy, timeliness, correctness, completeness, reliability, currency, performance or fitness for a particular purpose of the Website or any Website Content. We are not liable for any errors, omissions, or inaccurate Website Content. It is your responsibility to review the information and determine its accuracy and applicability to you as an individual.
THE WEBSITE AND THE WEBSITE CONTENT (INCLUDING ALL SERVICES) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE MP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF CONDITION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, CURRENCY, RELIABILITY OR USEFULNESS OF THE WEBSITE CONTENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR THAT ARISES FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR TRADE PRACTICE, WHICH ARE EXCLUDED FROM THIS AGREEMENT TO THE EXTENT THAT THEY MAY BE EXCLUDED AS A MATTER OF LAW.
THE MP PARTIES DO NOT WARRANT THAT THE WEBSITE, THE WEBSITE CONTENT OR SERVICES, ANY SERVERS HOSTING THE WEBSITE, OR ANY COMMUNICATION SENT BY OR ON BEHALF OF THE MP PARTIES, ARE OR WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, DISABLING DEVICES, INACCURACIES, ERRORS, DEFECTS OR OTHER HARMFUL COMPONENTS, OR OTHERWISE MEET YOUR REQUIREMENTS, OR THAT YOU WILL HAVE SECURE, TIMELY, CONTINUOUS OR UNINTERRUPTED ACCESS TO OR USE OF THE WEBSITE OR ANY WEBSITE CONTENT, OR THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE WEBSITE OR THE WEBSITE CONTENT WILL BE CORRECTED. YOU USE AND ACCESS THE WEBSITE AND THE WEBSITE CONTENT AT YOUR OWN RISK AND DISCRETION. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, BUSINESS OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING IN, OR USE OF, THE WEBSITE OR YOUR DOWNLOADING OF THE WEBSITE CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ALL LOSSES AND DAMAGES, INCLUDING ANY LOSS OF OR DAMAGE TO YOUR BUSINESS, COMPUTER SYSTEM OR DATA THAT MAY RESULT FROM YOUR ACCESS AND USE OF THE WEB AND ANY WEBSITE CONTENT, AND FOR IMPLEMENTING SUFFICIENT PROCEDURES AND VIRUS CHECKS (INCLUDING ANTI-VIRUS AND OTHER SECURITY CHECKS) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT.
NO ADVICE, RESULTS, STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR ON BEHALF OF THE MP PARTIES OR THROUGH THE WEBSITE SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY MADE HEREIN.
Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE WEBSITE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE WEBSITE.
Limitation of Liability of the MP Parties
EXCEPT AS SET OUT BELOW, UNDER NO CIRCUMSTANCES, SHALL THE MP PARTIES BE LIABLE FOR ANY DAMAGES, LOSS OR INJURY OF ANY KIND THAT ARISES OUT OF OR IN CONNECTION WITH: (A) THESE TERMS OR ANY OF THE ADDITIONAL TERMS; (B) THE SALE OR PURCHASE OF ANY PRODUCTS OR SERVICES; (C) THE USE OF OR RELIANCE ON THE WEBSITE OR THE WEBSITE CONTENT; (D) THE DELAY OR INABILITY TO USE THE WEBSITE; OR (E) ANY INFORMATION, ADVICE OR SERVICES OBTAINED THROUGH THE WEBSITE, ALL OF THE FOREGOING INCLUDING FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY LOST PROFITS, BUSINESS, BUSINESS OPPORTUNITIES OR REVENUES, LOSS OF GOODWILL OR REPUTATION, COSTS OF REPLACEMENT GOODS OR SERVICES, ANY LOSS, DELETION OR CORRUPTION OF, OR DAMAGE TO, HARDWARE, SOFTWARE OR DATA, ANY INCONVENIENCE OR BUSINESS INTERRUPTION, OR ANY DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, ENHANCED, TREBLED OR MULTIPLE DAMAGES WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE OR THE MP PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THOSE ASPECTS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, THE MP PARTIES' LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITATION OF THE FOREGOING PARAGRAPH, THE MP PARTIES WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY ARISING FROM OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, ANY COMPUTER VIRUS OR OTHER HARMFUL CODE OR COMPONENT, OR ANY LINE FAILURE.
IN NO EVENT SHALL THE MP PARTIES BE LIABLE FOR, OR IN CONNECTION WITH, ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WEBSITE (INCLUDING ANY OF YOUR CONTENT). IN NO EVENT SHALL THE MP PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE (A) THE AMOUNT, IF ANY, PAID BY YOU TO US FOR YOUR USE OF THE WEBSITE OR FOR ANY OF YOUR ACTIVITIES ON THE WEBSITE DURING THE THREE MONTHS IMMEDIATELY PRECEDING YOUR CLAIM; OR (B) ONE HUNDRED U.S. DOLLARS (US$100), WHICHEVER IS GREATER.
Your Liability and Indemnification Obligations
You are solely responsible and liable for: (a) any breach of your representations, warranties, covenants or obligations under these Terms and for the consequences of such breach, including any resulting loss or damage incurred by the MP Parties or third parties; (b) all activities that occur under your registration to the Website, password, user name or identification, access code or account; (c) maintaining the security, confidentiality and restricted, authorized use of all user names and identifications, passwords, and access codes to the Website or any Website Content that are in your knowledge, control or possession; and (d) any and all actions and omissions by any of your personnel and/or other persons and entities under your control or for whose actions you may otherwise be held liable (it being understood and agreed that all such third party actions and omissions, which, if committed by you would constitute a breach of these Terms shall constitute a breach hereof as if directly committed by you).
You agree to defend, indemnify, and hold harmless the MP Parties, its affiliates, licensors, service providers, and each of the foregoing persons' and entities' respective officers, directors, employees, representatives and agents, and all others involved in creating, promoting, or otherwise making available the Website or any of the Website Content, and each of their respective successors and assigns, from and against any and all claims, actions, demands, costs, expenses, damages, losses and liabilities, including reasonable legal and accounting fees ("Claims and Liabilities"), that arise out of or in connection with, or result from, any of Your Content or your access to or use of the Website or any Website Content, your breach of or noncompliance with these Terms or any Additional Terms, or your violation of any rights of any third party. We will attempt to provide prompt notice to you of any such Claims and Liabilities and we reserve the right to take exclusive control and defense of any claim, action or demand subject to indemnification by you, in which event you agree to cooperate fully with the MP Parties in asserting any available defenses.
No revocation, expiration or termination for any reason of any (or all) of the rights, licenses and/or privileges granted to you under these Terms shall affect the MP Parties' right to payment, as and when due, of any amounts payable by you to the MP Parties.
Notification and Counter-Notification of Claim of Copyright Infringement
We respect the intellectual property rights of others and require our users to do the same. To notify us of your claim of copyright infringement with respect to any Website Content, please send a written communication to our designated copyright agent:
Mark Propco, LLC c/o Alexico Group LLC
150 East 58th Street, 33rd Floor
New York, NY 10155
Your notice must include:
- 1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- 2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
- 3. Identification of the 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 us to locate the material;
- 4. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- 5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- 6. 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.
If we receive a valid counter-notification, we will restore the removed or disabled material after ten (10), but no later than fourteen (14), business days from the date on which we receive the counter-notification, unless our Copyright Agent first receives notice from you, as the party filing the original notification of copyright infringement, informing us that you have filed a court action to restrain infringement of the material in question.
Modification, Suspension and Termination
We reserve the right to modify, suspend or terminate, in our sole discretion, at any time, temporarily or permanently, for any or no reason and without notice to you, and without any liability to you, any portion of the Website.
We may change products or Services mentioned on the Website at any time with or without notice.
You agree that we may assign any of our rights, and/or transfer, sub-contract or delegate any of our obligations, under these Terms. Your agreement to these Terms is personal to you and you may not transfer or assign it to any third party.
Governing Law and Jurisdiction
You agree that the laws of the United States of America and the laws of the State of New York, without regard to the principles of conflicts of laws, will govern your use of the Website, these Terms and all matters relating to your access to, and/or use of, the Website, including all disputes between you and us and/or the MP Parties. You irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in New York County, New York, and the related appellate courts, in any related action, dispute or proceeding. Notwithstanding the above sentence, the MP Parties shall have the right to apply for an injunction or other emergency relief in any jurisdiction.
You understand and agree that money damages would not be an adequate remedy for any breach by you of these Terms and that the MP Parties shall be entitled to equitable relief, including preliminary and permanent injunctions and specific performance, as well as recovery of court costs, expenses and reasonable attorneys' fees, if you breach or threaten to breach any provision hereof or thereof. Such remedies shall not be exclusive, shall be in addition to all other remedies available at law, equity or otherwise for your breach of these Terms, and shall be available to the MP Parties without requirement that it post any bond or prove any actual damages.
These Terms constitute the entire agreement between you and us and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us, with respect to your use of the Website and all matters relating to your access to, and/or use of, the Website. A printed version of these Terms and of any notice given in electronic form shall be admissible in any and all judicial or administrative proceedings based upon or relating to these Terms to the same extent as other business documents and records originally generated and maintained in printed form.
If any part of these Terms is determined to be invalid or unenforceable under applicable law including the warranty disclaimers and liability limitations stated above, then the invalid or unenforceable provision(s) 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 shall continue in full effect.
Any rights not expressly granted in these Terms are reserved to the MP Parties.
No failure or delay of the MP Parties to exercise or enforce any right, remedy or privilege shall constitute or result in any loss or waiver of that, or any other, the MP Parties' right, remedy or privilege, in whole or in part.
Third Party Beneficiaries
Each of the MP Parties service providers and licensors shall be third party beneficiaries to these Terms and the Additional Terms, and shall be entitled to directly rely on and enforce any provisions of these Terms or Additional Terms which confer a benefit on or rights in favor of the MP Parties. No other person or entity shall be a third party beneficiary to these Terms or the Additional Terms.
Survival of Terms
All provisions of these Terms and of the Additional Terms that consist of or relate to notices, ownership of intellectual or other property, confidentiality obligations, representations, warranties, limitations of liability, disclaimers, indemnification, dispute resolution, governing law, venue or jurisdiction, or any prohibitions or restrictions respecting any access to, use of, or other activities concerning the Website or any Website Content, shall survive the revocation, expiration or termination, in whole or in part, of these Terms or the Additional Terms, or any license hereunder or thereunder, however and whenever occurring.
You represent and warrant that you have the unencumbered right to grant the rights granted herein and to enter this agreement.
For purposes of these Terms: (1) the singular includes the plural and the plural includes the singular; (2) "or" and "and" connotes any combination of all or any of the items listed; (3) any form of the word "include" shall be deemed to be followed by the words "without limitation"; (4) headings are merely for convenience and in no way modify, interpret or construe the intentions of the parties; and (5) whenever you are restricted from taking any action hereunder, you are also restricted from directly or indirectly authorizing, permitting, or cooperating with a third party or affiliate to take such action.