Ownership and Copyright
Except as otherwise indicated, the Site, and all text, images, marks, logos and other content displayed on the Site, including, without limitation, all logos, designs, text, graphics, pictures, information, data, software, sound files, other files, Content (as defined below) and the selection and arrangement thereof (collectively, the "Site Content") are the proprietary property of performanceIX or its licensors or users and are protected by U.S. and international copyright laws. The Site and all Site Content is © 2011 performanceIX, Inc., All Rights Reserved.
performanceIX, Bimmerfest, and the look and feel of the Site, including all graphics, icons, scripts, page headers, and layouts, are registered and/or common law trademarks and/or trade dress of performanceIX, and may not be copied, imitated or used, in whole or in part, without the prior written permission of performanceIX.
All other trademarks, registered trademarks, product names and company names or logos mentioned or displayed on the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by performanceIX.
To request permission for uses of Site Content not included in the foregoing license, you may contact performanceIX as follows:performanceIX, Inc.
17 Locust Street
Medford, MA 02155
You may not use any registered or common law trademark or service mark of performanceIX or any logo or other proprietary graphic of performanceIX to link to the Site without the express written permission of performanceIX. Further, you may not frame or utilize framing techniques to enclose any Site Content or any performanceIX trademark, service mark, logo or other proprietary information, without performanceIX’s express written consent.
The Site may contain links to third-party Web sites ("Third-Party Sites") and third-party content ("Third-Party Content") as a service to those interested in this information. You use links to Third-Party Sites, and any Third-Party Content therein, at your own risk. performanceIX does not monitor or control and makes no claim or representation regarding Third-Party Content or Third-Party Sites. performanceIX provides these links only as a convenience, and a link to a Third-Party Site or Third-Party Content does not imply performanceIX’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. YOU agree that performanceIX shall not be liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with the use or reliance on any such Third-Party Site or Third-Party Content or any goods or services available on, from or through any such Third-Party Site or Third-Party. performanceIX accepts no responsibility for the quality, content, policies, nature, or reliability of Third-Party Content, Third-Party Sites, or Web sites linking to the Site. When you leave the Site, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Children Online Protection Act Notification
Pursuant to 47 U.S.C. § 230(d), we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at http://www.parentalguidance.org/ and http://en.wikipedia.org/wiki/List_of_content-control_software.
Use of Discussion Forums, Bulletin Boards, and Other Interactive Areas
The Site may contain discussion forums, bulletin boards, or other methods by which you or third parties may post messages, images, or other information on the Site ("Interactive Areas"). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:
- Any message, data, information, text, music, sound, photos, graphics, code or other material ("Content") that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New York Stock Exchange, the American Stock Exchange or the NASDAQ;
- Content that may infringe any patent, trademark, service mark, trade secret, copyright or other intellectual or proprietary right of any party;
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Content that is unrelated to the topic of the Interactive Area(s) in which such Content is posted; or
- Content that, in the sole judgment of performanceIX, is objectionable or that restricts or inhibits any other person from using or enjoying the Interactive Areas or the Site, or that may expose performanceIX or its affiliates or its users to any harm or liability of any sort.
Rights to User Content
Except as specifically indicated, by posting or distributing Content to or through the Site, you grant performanceIX and its affiliates (a) a nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Content throughout the world in any media, now known or hereafter devised; and (b) the right to use the name that you submit in connection with such Content.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the Content, you hereby declare that (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the Content by performanceIX or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the Content; and (d) you forever release performanceIX, and its licensees, successors and assigns, from any claims that you could otherwise assert against performanceIX by virtue of any such moral rights.
Advertisements and Promotions
performanceIX may run advertisements and promotions from third parties on the Site. Your business dealings or correspondence with, or participation in promotions of, parties other than performanceIX, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. performanceIX is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Site. performanceIX does not warrant the accuracy, completeness, or reliability of any information on the Site, including but not limited to product descriptions, prices, and reviews, or the content of any third-party advertisement. performanceIX provides this Site and the information it contains for informational purposes only. performanceIX does not endorse any product or service, any merchant, or any reviews or comments regardless of the source.
performanceIX has no control over the business practices of any third-party merchant, nor does it control in any way the quality, safety or legality of any item listed on the Site or any business transaction that occurs between any user of this Site and any third-party merchant. IN THE EVENT OF A DISPUTE BETWEEN YOU AND ANY MERCHANT LISTED OR ADVERTISED ON THE SITE, YOU RELEASE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PERFORMANCEIX, ITS PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS OR OTHER THIRD PARTIES UNDER CONTRACT WITH PERFORMANCEIX, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST CLAIMS AND DAMAGES OF ANY KIND, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.
If you are a California resident, you explicitly waive the rights granted to you under California Civil Code 1542, which provides that: "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."
If you believe that material posted on the Site infringes upon any copyright that you own or control, or that any link on the Site directs users to another Web site that contains materials that infringes upon any copyright that you hold or control, you may file a notification of such infringement with our Designated Agent as set forth below:performanceIX, Inc.
17 Locust Street
Medford, MA 02155
To be effective, any written complaint must contain the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of 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; (iii) 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; (iv) information reasonably sufficient to permit us to contact you, such as your address, telephone number, and e-mail address; (v) a statement that you have a good faith belief that the complained-of materials is not authorized by the copyright or other proprietary right owner, its agent, or the law; (vi) 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.
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's address in our records.
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, performanceIX has adopted a policy of terminating, in appropriate circumstances and at performanceIX’s sole discretion, subscribers or account holders who are deemed to be repeat infringers of any copyright. performanceIX may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Registration Data; Account Security
You agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password; (c) maintain and promptly update the Registration Data, and any other information you provide to performanceIX, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to performanceIX.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING, THE SITE, THE SITE CONTENT AND THE SERVICES PROVIDED ON OR IN CONNECTION THEREWITH (THE "SERVICES") ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PERFORMANCEIX SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SERVICES, INFORMATION, AND CONTENT ON THE SITE. PERFORMANCEIX DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE SITE OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, OR CURRENT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, OR CURRENCY OF THE SITE, THE SITE CONTENT OR ANY PORTION THEREOF.
PERFORMANCEIX IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS IN ANY SITE CONTENT.
WHILE PERFORMANCEIX ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITE AND THE SERVICES SAFE, PERFORMANCEIX CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IT IS YOUR RESPONSIBILITY TO SELECT, PURCHASE, AND USE SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
LIMITATION OF LIABILITY
YOU WAIVE AND COVENANT NOT TO ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY NATURE WHATSOEVER AGAINST PERFORMANCEIX, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF THE SITE, THE SERVICES, OR THE SITE CONTENT CONTAINED IN OR ACCESSIBLE THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS OR ALLEGATIONS RELATING TO THE ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS, ALLEGED INACCURACY OF SITE CONTENT, OR ALLEGATIONS THAT PERFORMANCEIX HAS OR SHOULD INDEMNIFY, DEFEND OR HOLD HARMLESS YOU OR ANY THIRD PARTY FROM ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE OR OTHER EXPLOITATION OF THE SITE. YOU USE THE SITE AT YOUR OWN RISK.
WITHOUT LIMITATION OF THE FOREGOING, NEITHER PERFORMANCEIX NOR ANY PARTIES PROVIDING SITE CONTENT SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, THE SERVICES, THE SITE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSIBLE THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY SITE CONTENT OR OTHER INFORMATION OBTAINED FROM PERFORMANCEIX OR ACCESSIBLE VIA THE SITE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PERFORMANCEIX’S RECORDS, PROGRAMS OR SERVICES. THE FOREGOING APPLIES EVEN IF PERFORMANCEIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PERFORMANCEIX, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO PERFORMANCEIX FOR ACCESS TO OR USE OF THE SITE.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Applicable Law and Venue
The Site (excluding any linked Third-Party sites) is controlled by performanceIX, Inc. and operated by performanceIX, Inc. from its offices in and around Medford, Massachusetts. While performanceIX has made no effort to publish the Site elsewhere, the Site is accessible in all 50 states of the United States and in other countries. You and performanceIX both benefit from establishing a predictable legal environment in regard to the Site. Therefore, you and performanceIX explicitly agree that all disputes, claims or other matters arising from or relating to your use of the Site will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law principles. You agree that any claims you may have against performanceIX, Inc. arising from or relating to the Site will be heard and resolved in a court of competent subject matter jurisdiction located in Massachusetts. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, covenant not to assert any objection to proceeding in such courts, and you expressly waive any right to proceed in any other court. If you choose to access the Site from locations other than Massachusetts, you will be responsible for compliance with all local laws of such other jurisdiction.
Termination/Modification of License and Site Offerings
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