MEMBERSHIP TERMS OF USE AGREEMENT

 

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS MUST BE ACCEPTED (“MANIFESTATION OF ASSENT”) ONLY BY INDICATING A MANIFESTATION OF ASSENT BY CLICKING THE “ACCEPT” BUTTON BELOW OR BY UPLOADING, POSTING, SENDING OR SUBMITTING TO INNERCHI INC, A NEVADA CORPORATION (“InnerChi”), THROUGH THE MEANS DESIGNED BY INNERCHI FROM TIME TO TIME (“DESIGNATED MEANS”), PHOTOGRAPHS, PICTURES, IMAGES OR ANY OTHER CONTENT INCLUDING WITHOUT LIMITATION, GRAPHICS, VIDEO, DATA, TEXT, FILES, LINKS, SOFTWARE, MUSIC OR SOUND (“UPLOAD CONTENT”).

 

By effecting a Manifestation of Assent, User (as defined below) certifies that User is at least 13 years of age or older as of the Effective Date (as defined below).  Should InnerChi discover that User is under the age of 13, InnerChi reserves the right to terminate User’s account immediately.  If under 18 years old, User must have User’s parent or legal guardian effect a Manifestation of Assent on User’s behalf.

 

This INNERCHI TERMS OF USE AGREEMENT (this “Agreement”) is made and entered into as of date the Manifestation of Assent was made (“Effective Date”) by and between InnerChi and you (“User”).

 

In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, InnerChi and User agree as follows:

1.                  Definitions and Interpretations. 

1.1.            Certain terms used herein shall have the meaning ascribed to such terms as set forth in Schedule 1.

1.2.            Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.

1.3.            All the defined terms as set forth in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.

 

 

 

2.                  User Covenants/Warranties. 

2.1.            User shall not Publish, copy or Distribute the Website Content for any purpose whatsoever.

2.2.            User shall not charge any Person any amount to view, Publish, copy or Distribute the Website Content.

2.3.            User shall be restricted to the limited use of the Website Content for Non-Commercial Purposes.

2.4.            User shall not utilize framing technology to enclose any Website Content or InnerChi Intellectual Property without express prior written consent of InnerChi, such consent granted in InnerChi’s sole and absolute discretion. 

2.5.            User shall not use any meta tags or other Content utilizing InnerChi Intellectual Property, without the express prior written consent of InnerChi, such consent granted in InnerChi’s sole and absolute discretion.

2.6.            User shall not Exploit any embodiment of InnerChi Intellectual Property in any Media whatsoever, unless such embodiment bears and displays the copyright, service mark and trademark notices as designated (from time to time) by InnerChi.

2.7.            User shall never Encumber, nor authorize nor enable any Person to Encumber, the InnerChi Intellectual Property or any portion thereof.

2.8.            User’s creation of or use of any hyperlink to InnerChi Website shall not portray InnerChi, InnerChi’s Affiliates, InnerChi’s Products or services in a false, derogatory, misleading, or otherwise offensive manner.

2.9.            To the extent that InnerChi enables Users to place Upload Content on the InnerChi Website, User shall not use the Service to:

2.9.1.      upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

2.9.2.      harm minors in any way;

2.9.3.      impersonate any Person, including, but not limited to, a InnerChi official, forum leader, guide or host, or falsely state or otherwise misrepresent User affiliation with a Person;

2.9.4.      forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

2.9.5.      upload, post, email, transmit or otherwise make available any Content that User does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential Content learned or disclosed as part of employment relationships or under nondisclosure agreements);

2.9.6.      upload, post, email, transmit or otherwise make available any Content that infringes any Intellectual Property of any Person, or which would violate any right of publicity, right of privacy or other right of any party without first obtaining permission of the owner of such right;

2.9.7.      upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation);

2.9.8.      upload, post, email, link, transmit or otherwise make available 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;

2.9.9.      interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

2.9.10.  intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

2.9.11.  “stalk” or otherwise harass another;

2.9.12.  collect or store personal data about other Persons; and

2.9.13.  otherwise uses the Service in a manner deemed inappropriate by InnerChi.

3.                  Third Person Links

The InnerChi Website may contain hyperlinks to other websites controlled by third Persons.  InnerChi is not responsible for the Content of any linked site or any link contained in a linked site.  InnerChi provides links to User only as a convenience, and the inclusion of any link does not imply endorsement by InnerChi of said other site(s).


 

4.                  Copyright Infringement Claim

4.1.            User shall direct any copyright infringement Claims to InnerChi’s designated agent, consistent with section 512 of the Digital Millennium Copyright Act (17 U.S.C. Section 512).  The designated agent to receive notification of claimed infringement, as filed with the Public Content Office of the Copyright Office, is available in the following manner:

 

U.S. Mail:

Steven A. Gibson, Esq.

Lewis Brisbois Bisgaard & Smith LLP

400 South Fourth Street, Suite 500

Las Vegas, NV 89101

Telephone: (702) 893-4374

Facsimile: (702) 893-3789

E-mail: gibson@lbbslaw.com

4.2.            All copyright infringement Claims must be in writing and shall include the following information:

4.2.1.      A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

4.2.2.      Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single website are covered by a single notification, a representative list of such works at that website;

4.2.3.      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 Content reasonably sufficient to permit InnerChi to locate the material;

4.2.4.      Content reasonably sufficient to permit InnerChi to contact the complaining party, including address, telephone number, and e-mail address;

4.2.5.      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

4.2.6.      A statement that the Content 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.

5.                  Retained Rights.

5.1.            InnerChi may, in InnerChi’s sole discretion, modify any and all of the Website Content without notice at any time.

5.2.            User shall not acquire any right, title or interest in and to the InnerChi Intellectual Property.  User shall not contest the right, title or interest of InnerChi in and to the InnerChi Intellectual Property.  User shall not at any time apply for any registration of any Intellectual Property which would affect the right, title or interest of InnerChi in and to the InnerChi Intellectual Property nor shall User file any document with any Governmental Authority or take any action which would impact any such right, title or interest in and to the InnerChi Intellectual Property or assist any other Person with such action or document.

5.3.      All right, title and interest in and to the InnerChi Intellectual Property, including, without limitation, the Intellectual Property in the InnerChi Intellectual Property, exclusively vests in and shall always vest with InnerChi or its respective designees. 

5.4.            User shall promptly notify InnerChi of any unauthorized Exploitation of InnerChi Intellectual Property by third Persons that come to User’s attention.

6.                  Disclaimer of all Warranties and Representations. 

INNERCHI DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE INNERCHI PRODUCTS OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS STATEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so this exclusion may not apply to you) OR CONDITIONS OF TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT INNERCHI KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING. 

7.                  Remedy. 

INNERCHI SHALL NOT BE HELD LIABLE TO ANY PARTY ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR ANY AMOUNT AND INNERCHI SHALL NOT BE LIABLE TO USER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO THE USER’S RIGHT, TITLE AND INTEREST) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

8.                  Termination

8.1.      In addition to any and all other remedies available to InnerChi pursuant to this Agreement, InnerChi shall have the right to immediately terminate this Agreement for any or no reason, with or without notice.

8.2.      Without limiting any other right or remedy set forth in this Agreement, including without limitation the rights and remedies provided by the provisions of Section 8 and Section 9.1, InnerChi retains the right to terminate the membership to the InnerChi Website of any User breaching this Agreement whether or not the User is a repeat copyright infringer.

9.                  General Provisions.

9.1.            User acknowledges that User’s use of the InnerChi Intellectual Property or any violation by User of User’s covenants in this Agreement relating to InnerChi Intellectual Property would result in damage that is largely intangible, but nonetheless real, and that is incapable of complete remedy by an award of damages.  Accordingly, any such violation shall give InnerChi the right to a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants.

9.2.            The provisions herein concerning Intellectual Property will be construed as independent of any other provision hereof and raising a defense to an obligation of the User in this Agreement related to Intellectual Property shall not impair the on‑going duty of User to perform in accordance with its own obligations pursuant to this Agreement.

9.3.            User shall not use InnerChi’s name, service marks, trade dress or trademarks, including without limitation, the marks InnerChi and VisionQi.  User agrees that User will in no way represent that User has any right, title or interest in or to the InnerChi Intellectual Property.

9.4.            If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.

9.5.            Sections 2, 3, 5, 6, 7, 9, 10 and 11 shall survive any termination of this Agreement.

9.6.            This Agreement represents the entire understanding between InnerChi and User with respect to the InnerChi Intellectual Property.  This Agreement may be changed, waived, discharged or terminated only by an instrument in writing, signed by the Party against which enforcement of such change, waiver, discharge or termination is sought.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns and may be executed in one (1) or more counterparts.  The Parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have this Agreement reviewed by their attorneys and that any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, including amendments, Schedules or exhibits.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada.  User consents to personal jurisdiction, as well as venue for any Claim regarding or arising out of this Agreement in the appropriate state or federal court located in Clark County, Nevada.

9.7.            User hereby represents, warrants and covenants that all Upload Content is non-confidential nor protectable as a trade secret. User hereby irrevocably waives any and all “moral rights” in any Upload Content, including the rights of paternity and integrity of all Upload Content.

9.8.            User covenants, represents and warrants that all Content provided to InnerChi upon registration and at all other times is and will be true, accurate, current and complete. User also agrees that User ensures this Content will be kept up to date at all times, especially User’s email address since InnerChi will direct all communication to User about User’s InnerChi account to User’s email address. InnerChi will use the Content User provides in accordance with this Agreement.  Statement.

9.9.            User understands that all information, data, text, Software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that User, and not InnerChi, is entirely responsible for all Content that User uploads, posts, emails, transmits or otherwise makes available via the Service. InnerChi does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. User understands that by using the Service, User may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will InnerChi be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any Loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.

10.              Privacy Policy

                                                                       

            User hereby agrees to, and stipulates to having read, the Privacy Policy .

 

11.       Possible Content Removal

 

            InnerChi retains the right, but not the obligation, to monitor and edit or remove any activity or content that it deems in its sole discretion to be harmful to users, InnerChi or the rights of any third party, or to violate any applicable law. This includes the right, but not the obligation, to remove any Upload Content InnerChi deems in InnerChi’s sole judgment to be inappropriate or which InnerChi believes may subject InnerChi to any liability, including without limitation the following:

 

11.1.    photographs, pictures, images, text or other materials submitted by users that are protected by trademark, copyright, right of publicity or other proprietary right, without the express permission of the owner of those rights;

 

11.2.    partially or fully nude images of anyone, at any age, of any gender, including sexually suggestive images or words;

 

11.3.    profanity or offensive comments including but not limited to expressions of racism, bigotry or hatred, or that are abusive, slanderous or offensive;

 

11.4.    any illegal material such as expressions of abuse, offensive language and imagery, obscenity or pornography, including, but not limited to, child abuse, child pornography, depictions of minors engaged in sexual conduct or explicitly sexual situations, or any other material that could give rise to any civil or criminal liability under, or otherwise violate, any applicable law.

 

SCHEDULE 1 - DEFINITIONS

 

“Affiliates” or “Affiliated” shall mean with respect to any Person, a Person which Controls, is Controlled by, or is under common Control with, the subject Person.

“Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.

“Content” shall mean all material, information, documents, matter, text, Software, data, graphics, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing.

“Contract” shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by Contract, or otherwise.

“Designated Means” shall have the meaning attributed to such term in Paragraph 1.

“Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever and through any means whether now known or hereafter developed.

“Disclose” shall mean disclose, disseminate, transmit, publish, distribute, make available or otherwise convey.

“Distribute” shall mean to offer for sale through any Media, the relevant goods or services.

“Domain Name” shall mean the Internet domain name <visionqi.com>.

“Effective Date” shall mean the date a Manifestation of Assent occurs.

“Encumber” shall mean to impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature.

“Exploit” shall mean to use, Publish, Disclose, make, sell or otherwise exploit in any manner whatsoever (through any means now known or hereafter Developed).

“Governmental Authority” shall mean any federal, state, county, municipal or other sovereign entity or jurisdiction, as well as all subdivisions, agencies and authorities therein.

“InnerChi Intellectual Property” shall mean the Intellectual Property owned, held, used or licensed by InnerChi, including, without limitation, the marks InnerChi and VisionQi as well as all Intellectual Property in and to the InnerChi Intellectual Property.

“InnerChi Products” shall mean all goods, products and services sold and/or marketed by InnerChi.

“InnerChi Website” shall mean the Content locatable at the Domain Name.

“Intellectual Property” shall mean all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions (whether or not patentable), mask works, Software, proprietary data, customer lists, strategic plans, financial data, Trade Secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing:  (i) all goodwill associated with any and all of the foregoing; (ii) all parents, continuations, continuations in part, divisionals, reissues and extensions; and (iii) all moral rights associated with any and all of the foregoing.

“Inventions” shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), and any work of authorship (whether or not copyright protection may be obtained for it).

“Loss” shall mean any and all damages, liabilities, costs, expenses, fees (including, without limitation, attorneys’, accountants’, investigators’, witnesses’ and professionals’ fees), charges, expenditures, liabilities, damages and other losses of whatsoever nature.

“Manifestation of Assent” shall have the meaning attributed to such term in Paragraph 1.

“Media” shall mean print, document-based medium, television, facsimile, telex, telephony, radio, satellite, cable, wire, computer-based network, network, magnetic means, optical means, electronic means, Internet, intranet, Software, compact and laser disc, digital video displays, video cassettes, Blu-ray disc, and multi-media and any other method (now known or hereafter Developed) for the publication, retention, conveyance, possession or holding of Content.

“Non-commercial Purposes” shall mean informational, personal and/or otherwise non-commercial purposes that do not involve any sales or marketing activities whatsoever.

“Person” shall mean any natural person, corporation, limited liability company, limited partnership, partnership trust, association, organization or other entity of whatsoever nature.

“Publish” shall mean to display, print, present, disseminate, reveal, convey, transfer, or otherwise publish in any Media whatsoever.

“Schedule” shall mean an enumerated schedule all of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement. 

“Section” shall be deemed a reference to an enumerated provision of this Agreement.  Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.

“Service” shall mean the ability to place Upload Content on the InnerChi Website (to the extent that InnerChi enables Users to upload Content), access the InnerChi Website and perform acts permitted by InnerChi as set forth herein.

“Software” shall mean source code, object code, executable code, or other program or code format whatsoever, whether now known or hereinafter developed.

“Trade Secrets” shall mean all methodologies (subject to same being the subject of an issued patent), pricing strategies, marketing approaches and other Confidential Content that the InnerChi reasonably informs (whether orally or in writing) the User from time to time is a trade secret, as well as other Confidential Content reasonably the subject of trade secret protection under relevant and applicable state statutes (including, without limitation, the Uniform Trade Secrets Act as enacted and promulgated from time to time in Nevada).

“Upload Content” shall have the meaning set forth in the first paragraph of this Agreement.

“Website Content” shall mean the Content accessible, displayed or otherwise conveyed through the InnerChi Website.