Last Updated: June 27, 2019
2. Content and Ownership
Unless otherwise specifically noted, the information, content, data, text, graphics, images, videos, documents, and any other materials made available through the Site (“Content”) is and shall remain the property of ProbablyMonsters Inc., its licensors and/or suppliers. The Site includes probablymonsters.com any other sites and domains controlled by ProbablyMonsters Inc.
The websites and various elements of the Site are protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound, design, text, video, or image from the Site may be copied, used, disseminated, published, or retransmitted unless expressly permitted in writing by ProbablyMonsters. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ProbablyMonsters’, or any of its suppliers’ or licensor’s, trade names, trademarks, copyrights, or service marks without the, express prior written consent of ProbablyMonsters. “ProbablyMonsters”, “PeopleKnot”, “Cauldron Studios”, “Cauldron”, “Firewalk Studios”, and other ProbablyMonsters Inc., Cauldron Studios and Firewalk Studios logos, designs, graphics, texts, images, videos, trademarks, service marks, and product and service names are the intellectual property of those respective entities.
Subject to your full compliance with these Terms, ProbablyMonsters grants you a personal, limited, non-exclusive, and revocable license to access and use the Site as set forth in these Terms (the “License”). Through this License, you may:
(a) view any Content on any single computing devices solely for personal, informational, non-commercial purposes, and
(b) provided that you keep intact all copyright and other proprietary notices, download and print the materials that ProbablyMonsters specifically makes available for downloading (such as technical research papers or user documentation) from the Site solely for personal, informational, non-commercial purposes, provided that such Content is not be modified or altered in any way.
As a condition of this License, you agree you will not:
(a) Unless otherwise specifically permitted for any particular Content, use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit, rent, lease, modify, loan, sell, distribute, or create derivative works based on, the Site or any Content, in whole or in part, without the express prior written authorization of ProbablyMonsters Inc.
(b) Use any third-party software, automation software (bots), or other products or wares that mine, collect, or intercept any information or Content on the Site, or any information (even if anonymous or anonymized) about any other user of the Site.
(c) Violate any applicable law, code, statute, or regulation.
(d) Interfere with, or do anything which may cause the interference with, the operation of the Site or any other’s use of the Site.
(e) Exploit any bugs, glitches, vulnerabilities, or unintentional mechanics of the Site, nor introduce any virus, worm, spyware, timebombs, or malicious ware or programs in or on to the Site.
4. Suspension and Termination
ProbablyMonsters has the right to suspend or terminate either your use of the Site or your License, or both, at any time, with or without notice. If you violate these Terms, your License terminates immediately and without notice to you. However, for any termination, Sections 9-15 still apply to you and your use of this Site.
5. User Generated Content
You may have the option, but are not required, to communicate with other users, post comments or content, or upload or share information or other materials, referred to as “User Generated Content” or “UGC.” As a condition for you to provide any UGC, you agree you will:
(a) Provide only truthful information, for a lawful purpose, and in compliance with these Terms and all laws, codes, statutes, and regulations.
(b) Not provide any content which is false or deceptive, defamatory, profane, vulgar, obscene, insensitive, hateful, threatening, abusive, harassing, or is invasive of anyone’ privacy.
(c) Not provide or include any personal information as to any other person.
(d) Not provide, post, or include any copyrighted, trademarked, or proprietary material, nor information or material which you do not lawfully own or have rights to.
(e) Not impersonate any other user or person.
(f) Not post any solicitations, advertisements, promotions, or marketing materials.
Unless otherwise specifically agreed to by you and ProbablyMonsters, by uploading, e-mailing, posting, publishing or otherwise transmitting UGC, or information, sample data, event types, tags, comments, suggestions, content or other materials to the Site or ProbablyMonsters (each a “Contribution”), you acknowledge that such Contribution is non-confidential, and automatically grant (or warrant that the owner of such rights has expressly granted) to ProbablyMonsters a perpetual, irrevocable, world-wide, non-exclusive, sublicensable, fully paid-up and royalty-free license to use, make, have made, offer for sale, sell, copy, distribute, perform, display (whether publicly or otherwise), modify, adapt, publish, transmit, and exploit such Contributions in any form, medium, or technology now known or later developed, and grant to others rights to do any of the foregoing. In addition, you warrant that all moral rights in the content have been waived. For each Contribution, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this Section, and that such Contribution, and your provision thereof to and through the Site, comply with all applicable laws, rules and regulations.
ProbablyMonsters will not pre-screen or review Contributions, but ProbablyMonsters reserves the right to refuse or delete any Contributions in its sole and complete discretion. You acknowledge and agree that ProbablyMonsters reserves the right (but has no obligation) to do one or more of the following in its discretion, without notice or attribution to you:
(a) monitor Contributions as well as your access to the Site;
(b) alter, remove, or refuse to post or allow to be posted any Contribution; and/or
(c) disclose any Contributions, and the circumstances surrounding their transmission, to any third party in order to operate the Site, in order to protect ProbablyMonsters’, its suppliers’ or licensor’s, and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, and the Site’s users and visitors;
(d) to comply with legal obligations or governmental requests; to enforce these Terms; or for any other reason or purpose.
You are solely responsible, and accept all risks and liability, for any UGC and Content you provide. ProbablyMonsters disclaims any responsibility for the Contributions displayed on its Site. ProbablyMonsters assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Contributions or other user information or personalization settings.
6. Community Content
The Site may allow users to post content, comments, or other information (“Community Content”). Your rights to view and access Community Content is subject to these Terms, and are at your own risk. Some of the Community Content may in your view be objectionable, offensive, vulgar, profane, insensitive, or in bad taste. In viewing or accessing any Community Content, you acknowledge and accept that you may be exposed to such content and accept all risks associated therewith. ProbablyMonsters does not monitor Community Content, and makes no promises or representations as to any accuracy, validity, or quality of the Community Content. The Community Content is the information and views of others, and does not represent the views and beliefs of ProbablyMonsters. ProbablyMonsters does not endorse any of the Community Content, and you agree that ProbablyMonsters is not responsible for, and you will hold ProbablyMonsters harmless from, any harm, injury, loss, damage, or claim related to or arising from any Community Content.
7. As-is, Without Warranty
The Site is presented “as-is” and without any warranty or guaranty of any kind. ProbablyMonsters does not represent and does not guarantee that the Site or content will be available at all times or at any given time. ProbablyMonsters expressly disclaims to the fullest extent of the law all representations and warranties of any kind, whether express or implied, including but not limited to those as to merchantability and fitness for a particular purpose.
8. Copyright Notice (DMCA)
The Digital Millennium Copyright Act (“DMCA”) provides a mechanism for notifying service providers of claims of unauthorized use of copyrighted materials. Under the DMCA, a claim must be sent to the provider’s designated agent. If you believe in good faith that ProbablyMonsters should be notified of a possible online copyright infringement involving any of the Content on the Site, please notify the Company’s designated agent:
Attn: DCMA Designated Agent / Legal
15800 SE Eastgate Way
Bellevue, WA 98008
Email: [email protected]
For residents in the European Union: Subject to Sections 12 and 15, ProbablyMonsters shall be liable only in accordance with statutory law in cases of its (a) intentional misconduct; (b) gross negligence; (c) breach of applicable Product Liability Acts. Without limiting the foregoing, we may only be liable for modest levels of negligence in cases of a breach of a “material” contractual obligation under the Agreement, the breach of which would jeopardize the purpose of the Agreement. In such circumstances, our liability will be limited to typical and foreseeable damages: in other circumstances we shall not be liable for acts of modest negligence.
In order to be effective, your notice must comply with the detailed requirements set forth in the DMCA, 17 U.S.C. Sec. 512(c)(3). Your notice must (1) be in writing, with 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) identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) identify 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 provide information reasonably sufficient to permit us to locate the material; (4) provide information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (5) include a statement that the complaining party has 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) include a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
9. Risk of Loss
You agree to bear all risk of, and agree to not hold ProbablyMonsters responsible for, any loss, damage, injury, harm, or claim arising out of or related to your use of the Site, and any UGC, Contribution, or Community Content.
10. Your Responsibility to Us (Indemnification)
You agree to defend, indemnify, and hold harmless ProbablyMonsters, and ProbablyMonsters’ affiliates, subsidiaries, directors, officers, employees, and shareholders (each an “Indemnified Party”) from and against all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, fines, forfeitures, expenses or damages (including all costs, expenses, and reasonable legal fees) of any kind and nature imposed on, incurred by, or asserted against any Indemnified Party arising out of or related to your violation or alleged violation of these Terms.
11. Time Period In Which to Bring or Assert a Claim
You agree that regardless of the statute of limitation applicable to any claim or cause of action you may have, you must file your claim or cause of action within one year after such claim or cause of action arose in order for it to be valid. Failure to file your claim or cause of action within the one-year period will forever bar such claim or cause of action.
12. Binding Arbitration
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court which asserts only claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation.
You and we will agree upon an arbitrator, and if we cannot agree upon an arbitrator within 30 days, you agree that ProbablyMonsters may then select a recognized organization (e.g. AAA, JAMS) to serve and to appoint the specific arbitrator. Arbitration shall occur at a location that is convenient for you. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
If the cost of your portion of the filing fee is greater than the filing fee for a lawsuit in the Court of general jurisdiction for the location of the arbitration, we will pay the additional cost. The parties presumptively shall equally share the cost of arbitration, however if you are unable to pay your share, or contend paying such share is prohibitive, unconscionable, oppressive, or unfairly or unduly burdensome, you may petition the arbitrator to request that your share be reduced in whole or part and shifted to ProbablyMonsters. Such petition shall be made not later than ten days (10) days after selection or agreement of the arbitrator, and if your financial position or circumstances change thereafter, then within fourteen (14) days of such changed circumstances. You will at all times bear the burden to demonstrate sufficient basis and need for such shifting, and any supporting financial records may be subject to an order as the Arbitrator deems appropriate to protect the integrity and privacy of the records (e.g. a protective order, limitation of use, return or destruction following determination, etc.), but the petition and any supporting declarations or statements shall be provided to ProbablyMonsters and ProbablyMonsters be given an opportunity to respond.
13. Waiver of Class Action
With or without arbitration, and even if an action is filed in Court, you agree to bring any claim, action, suit, or proceeding individually and not as part of a class. You waive to the fullest extent of the law any right to participate in, be a representative of, or seek relief as part of a class action. To the extent an arbitrator or court determines this Waiver of Class Action is unenforceable or void, then the arbitration provision above shall equally be unenforceable or void, and such Claims may be resolved by public court as part of the class action.
14. Limitation of Damages
You and ProbablyMonsters agree that in no case will either party be liable or responsible to the other for any consequential, indirect, exemplary, punitive, treble, or special damages. If you are resident of a member of the European Union, then ProbablyMonsters shall be liable in accordance with statutory law in cases of its (a) intentional misconduct; (b) gross negligence; (c) breach of applicable Product Liability Acts. Without limiting the foregoing, ProbablyMonsters may only be liable for modest levels of negligence in cases of a breach of a “material” contractual obligation under these Terms, the breach of which would jeopardize the purpose of these Terms. In such circumstances, ProbablyMonster’s liability will be limited to typical and foreseeable damages; in other circumstances ProbablyMonsters shall not be liable for acts of modest negligence.
ProbablyMonsters reserves the right to amend, modify, or add to or delete from any of these Terms without prior notice. You agree ProbablyMonsters may make such changes without notice, and consent to all such changes.