Effective as of October 12, 2011
Welcome to www.wiederinc.com (the “Site”) the website and online presence of Wieder, Inc., a Delaware Corporation (“Wieder”, “we”, or “us”).
- I. Definitions.
- “Affiliate” means any person or legal person with which Wieder has a business or contractual relationship, including, but not limited to, agents, partners, associates, and parent or subsidiary entities.
- “Client” means an actual or legal person who has a current contractual relationship with Wieder, whereby Wieder provides services.
- “Content” means any intellectual property, data, or communications Transmitted via the Site by Wieder or Users including, but not limited to, articles, audio, blog postings, comments, documents, editorial content, featured site profiles, files, images, listings, logos, messages, music, photos, postings, questions and answers, ratings, recommendations, reviews, sounds, site profiles, tags, text, trademarks, service marks, or videos.
- “Wieder Content” means Content Transmitted by Wieder.
- “Wieder Technology” means the past, present and future intellectual property comprising the Site, including, but not limited to, all software, code processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable, patentable, or otherwise legally protectable elements of the Site and all other tangible or intangible materials related to, displayed, performed, or distributed on the Site, and the Site itself, including, but not limited to, the selection, sequence, “look and feel”, arrangement of items on the Site.
- “Transmit” means uploading, submitting, posting, distributing, downloading, disseminating, receiving, or otherwise making available Content.
- “User” means an individual who accesses and/or uses the Site.
- “User Content” means any Content Transmitted by Users.
- “Your Content” means any Content You Transmit via the Site.
- II. Age Requirement. THE SITE IS NOT INTENDED FOR CHILDREN. IF YOU ARE UNDER 18 YEARS OF AGE, THEN YOU MAY NOT ACCESS OR USE THE SITE AT ANY TIME OR IN ANY MANNER. BY USING THE SITE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE.
- V. Wieder Content & Wieder Technology. Unless otherwise noted, all Content on the Site is Wieder Content and is owned, controlled, or licensed by Wieder and is protected by copyright, trademarks, service marks, and/or other intellectual property rights. You agree that You shall acquire no rights in Wieder Content or Wieder Technology unless otherwise noted in writing by Wieder. You may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit Wieder Content or Wieder Technology for commercial use in any way without the prior written consent of Wieder. You may not take any of the following actions or encourage others to take the following actions: 1) use the Site to increase traffic to Your website for commercial reasons, such as advertising or sales; 2) take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure; 3) “scrape” the Site, or use any bot, spider, scraper, data miner, or automated agent to access and/or or use the Site or gain access to and/or use any Content on the Site; 4) take Content from the Site and reformat and display said Content, or mirror and/or frame any pages of the Site on any other website; or 5) attempt to decipher, decompile, disassemble, or reverse engineer any Content or Wieder Technology. You acknowledge that if You violate this provision of the Terms, Wieder will be irreparably harmed. As such, in addition to all other remedies available to Wieder, Wieder will be entitled to liquidated damages in the amount of $25,000. You agree and acknowledge that these liquidated damages are a fair and accurate estimate of Wieder‘s actual damages resulting from a breach of this provision and shall not be construed as penalty or punitive damages against you.
- License to Access and/or Use. Wieder grants You a limited, personal, non-exclusive, non-transferable, freely revocable license to access and/or use Wieder Content & Wieder Technology that is on the Site solely for the purpose of learning about Wieder’s services. You acknowledge and agree that with exception to this limited license You have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit any of the Wieder Content or Wieder Technology in any manner unless otherwise noted in writing by Wieder. This limited license terminates automatically, without notice to You, if You breach any of the Terms.
- Reservation of Rights. Wieder reserves all rights not expressly granted in the Terms unless otherwise noted in writing by Wieder.
- Prevention of Unauthorized Use. Wieder reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, Wieder Content, and Wieder Technology, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.
- Derivative Work. To the extent that You create any work that is based upon Wieder Content or Wieder Technology, such as an enhancement or modification, revision, translation, abridgment, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted (“Derivative Work”) such Derivative Work shall be owned by Wieder and all right, title and interest in and to each such Derivative Work shall automatically vest in Wieder. Wieder shall have no obligation to grant You any right in any such Derivative Work.
- VI. User Content. Users may Transmit User Content to Wieder via the Contact function on the Site and via the email addresses and fax number provided on the Site.
- Retention of Ownership. Wieder does not claim any ownership rights in Your Content. After You Transmit Your Content to Wieder, You continue to retain ownership of Your Content, and You continue to have the right to use and license Your Content in any way You choose. Any of Your Content transmitted via Wieder Technology needs to comply with the Terms.
- License Grant to Wieder. By Transmitting Your Content to Wieder, You thereby grant Wieder a paid-in-full worldwide perpetual irrevocable sub-licensable royalty-free right and license to use, display, perform, distribute, modify, adapt, abridge, exploit, and promote Your Content in any way and in any commercial or non-commercial medium or form without compensation.
- User Content Representations and Warranties. You are solely responsible for Your Content and all the consequences of Transmitting Your Content. By Transmitting Your Content, You affirm, represent, and warrant that (i) You are the creator and owner of Your Content or have the necessary licenses, rights, consents, releases, and permissions to use and for Wieder to use Your Content as necessary to exercise the licenses granted by You in this Section and in the manner contemplated by Wieder and the Terms; (ii) Your Content does not and will not slander, defame, or libel any other person; (iii) the use of Your Content as permitted herein does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (iv) Your Content does not contain any viruses, adware, spyware, worms, or other malicious code; and (v) Your Content is free of any digital rights management, including any software designed to limit the number of times Your Content may be copied or played. Violators of the Terms may be subject to criminal and civil liability. Wieder reserves all rights and remedies against any Users who violate the Terms.
- VII. Digital Millennium Copyright Act Policy. Wieder takes intellectual property rights very seriously and demands the same from all Users and Clients. Wieder will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (DMCA). The DMCA provides a process for a copyright owner to give notification to Wieder concerning alleged copyright infringement. When a valid DMCA notification is received, Wieder responds under this process by taking down the offending Content. On taking down Content under the DMCA, we will take reasonable steps to contact the owner of the removed Content so that a counter-notification may be filed. On receiving a valid counter-notification, we generally restore the Content in question, unless we receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
- a. Notice of Infringement
If You are a copyright owner and have a good faith belief that any Content posted on or transferred through the Site or one of Wieder’s Client sites infringes on Your copyrights, You may send WIEDER’s designated Copyright Agent a written notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C. 512, “DMCA”). The notice of infringement must contain the information specified below in the following format:
(i) identify in sufficient detail the copyrighted work claimed to have been infringed; if multiple copyrighted works are covered by a single notice of infringement letter, provide a representative list of such works;
(ii) identify in sufficient detail the material that is claimed to be infringing and information reasonably sufficient to permit Wieder to locate the material on the Site or Client site (e.g., provide the Uniform Resource Locator, “URL,” of the material claimed to be infringing);
(iii) provide information reasonably sufficient to permit Wieder to contact You (e.g., a street address, telephone number, and email address if available);
(iv) provide a statement that You have a good faith belief that the use of the copyrighted material in the manner described in the notice letter is not authorized by the copyright owner, its agent, or the law;
(v) provide a statement, made under penalty of perjury, that the information provided in the notice letter is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(vi) provide the physical or electronic signature of the copyright owner or someone authorized to act on the owner’s behalf.
The notice of infringement letter must be submitted to Wieder’s Designated Copyright Agent by mail or email as set forth below:
Attn: Designated Copyright Agent
1201 N Orange St Suite 7514
Wilmington DE 19801-1186
Be advised that failure to comply with all of the above requirements may invalidate Your Notice of Infringement under the DMCA.
Wieder’s response to a proper Notice of Infringement will be to remove or disable access to the Content claimed to be infringing and notify the alleged infringer of Your claim so he or she can submit a Counter Notice to Wieder.
- b. Counter Notice
If Your Content was removed or access was blocked and You have a good faith belief that it is not infringing on any copyrighted material, You may send Wieder a written, Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format:
(i) identify in sufficient detail the Content that Wieder has removed or to which Wieder has disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
(ii) provide Your name, address, telephone number, and email address;
(iii) a statement that You consent to the jurisdiction of the federal district court in which your address is located, and a statement that You will accept service of process from the person who provided notification of the alleged infringing activity;
(iv) provide a statement, made under penalty of perjury, that You have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and
(v) provide Your physical or electronic signature.
The Counter Notice must be submitted to Wieder’s Designated Copyright Agent by mail, fax, or email as set forth below:
Attn: Designated Copyright Agent
1201 N Orange St Suite 7514
Wilmington DE 19801-1186
Be advised that failure to comply with all of the above requirements may invalidate Your Counter Notice under the DMCA.
If the Copyright Agent receives Your valid Counter Notice, Wieder may restore Your removed Content or cease disabling it within 10-14 business days, unless Wieder receives notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop Your alleged infringement.
- VIII. Unsolicited Suggestions. Wieder welcomes Your feedback and is open to suggestions made by Users. By submitting unsolicited suggestions, You agree that Wieder may, but shall have no obligation to, use, modify, distribute, copy, and otherwise exploit such suggestions in any manner, as Wieder sees fit, without restriction or limitation of any kind, and You grant to Wieder a paid-in-full worldwide perpetual irrevocable sub-licensable royalty-free right and license to do so and to allow others to do so, and agree not to permit or prosecute any action or lawsuit on the ground that Wieder’s use or alleged use of a suggestion infringes any of Your rights.
- IX. Links to Other Websites or Services. The Site may include links or references to other websites or services (“Linked Sites”). Linked Sites are provided for Your convenience and information only. Wieder does not control the availability and content of Linked Sites. Access and/or use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at Your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to the operator of the particular Linked Site.
- X. Changes to the Site. Wieder or an Affiliate may discontinue or change any Content, service, function, or feature of the Site at any time with or without notice.
- XI. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WIEDER, OUR SUPPLIERS, LICENSORS, AND AFFILIATES, DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH REGARDS TO THE SITE AND ALL CONTENT ON THE SITE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS SOLELY AT YOUR OWN RISK. THE SITE AND ALL CONTENT THEREON IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
WIEDER, OUR SUPPLIERS, LICENSORS, AND AFFILIATES DO NOT WARRANT THAT THE DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR ANY LINKED SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
- XII. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WIEDER, OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE CONTENT ON THE SITE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH WIEDER, EVEN IF WIEDER OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
USERS WHO ARE CALIFORNIA RESIDENTS AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- XIII. Indemnification. You agree to indemnify, defend, and hold Wieder, our Affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers harmless from any liability, loss, claim, and expense, including reasonable attorney’s fees, related to Your Content, Your violation or alleged violation of the Terms, or access and/or use of the Site.
- XIV. Waiver. The failure of Wieder to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by duly authorized agent of Wieder.
- XV. Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
- XVII. Dispute Resolution. You agree to first try to resolve any controversy, claim, or dispute arising out of or relating to the Terms or the access and/or use of the Site, with the help of a mutually agreed upon mediator in Los Angeles, California. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. Attorney fees associated with the mediation shall be paid by the respective parties.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, You agree to submit the dispute to binding arbitration in Los Angeles, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association (“AAA”), and judgment on the award rendered by the arbitrator(s) may be entered in the state courts in and for Los Angeles, California or the Western Division of the Central District of California. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. The arbitrator shall be required to follow applicable law.
IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES INAPPLICABLE, THEN YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- XVIII. Attorney Fees. If any litigation or arbitration is necessary to enforce the Terms the prevailing party shall be entitled to reasonable attorney fees, costs, and expenses.
- XIX. International Use. Wieder makes no representation that Content on the Site is appropriate or available for use in locations outside the United States. If You choose to access and/or use the Site from a location outside the U.S., You do so on Your own initiative and You are responsible for compliance with local laws.
- XX. Severability. If any provision of the Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- XXI. Assignment. Your rights and licenses under the Terms may not be transferred or assigned by You, but may be assigned by Wieder without restriction. Any assignment attempted to be made in violation of the Terms shall be void.
- XXII. Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
- XXIII. Relationship. The Terms create no agency, partnership, joint venture, or employee-employer relationship between You and Wieder, unless otherwise noted in writing by Wieder.
- XXIV. Entire Agreement. The Terms are the entire agreement between You and Wieder relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to the Terms made by Wieder as set forth in Section IV of the Terms.
- XXV. Contact Information
Any comments, complaints, or requests for further information can be directed to:
1201 N Orange St Suite 7514
Wilmington DE 19801-1186
In accordance with California Civil Code Section 1789.3, California Residents may also direct any complaints to the Complaint Assistance Unit of the Division of Consumer Services of The California Department of Consumer Affairs at:
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone: +1 (800) 952-5210