Last updated on June 2, 2016.
ADDENDUM (added 12/14/15)
Public Health Advocates (PHA), formerly the California Center for Public Health Advocacy (CCPHA), is a nonprofit organization that works to educate communities--via its Kick the Can initiative website and through policies at the state and local levels--about the health risks inherent to sugary beverage consumption.
The information presented herein represents a range of strategies designed to assist advocates in getting sugary drink tax initiatives off-the- ground in their communities.
The unique nature of every municipality, locality, district and its respective constituency means that PHA cannot guarantee the success of any one campaign or the appropriateness of the strategies outlined within for all circumstances.
PHA will not assume liability for any campaign effort that fails to result in a policy adoption, nor will PHA assume responsibility should any user of the information we provide face legal challenges related to implementation of a sugary drink tax following his/her successful sugary drink tax campaign.
The legal information in this document does not constitute legal advice or create an attorney-client relationship between PHA, attorneys and consultants, and any other parties. Users are encouraged to consult an attorney in their state for further guidance.
1. WHO WE ARE
We're glad you're here. This website is operated by Public Health Advocates ("PHA," "we" or "us"). PHA has created the Kick The Can project (the "Project") to provide information about the negative health effects of sugary drinks, summaries of sugary drink related policy activity around the United States, and information about beverage industry strategies. We provide a variety of information, resources, content, services, applications and products about the Project on or through www.kickthecan.info and related websites as well as third party platforms ("Third-Party Platforms") such as Facebook, Twitter and other social media (collectively, the "Sites").
This is a legally binding agreement that governs your use of all PHA services whether on our Sites or Third-Party Platform Sites. Third-Party Platforms will be subject to the Terms of Service of those sites as well. We hope you will familiarize yourself with these Terms, because they reflect our understanding of how our Sites operate, what you can expect from us, and what we expect from you. Think of them as playground rules. And of course, if there's anything you don't understand, ask us by sending us a note at firstname.lastname@example.org.
3. MODIFICATIONS TO AGREEMENT
As we learn and grow, we update our Terms, so please check back often. These Terms were last updated on or around the date provided above. We reserve the right to make changes to any Terms at any time, however, PHA shall provide notification to you in advance of substantive changes becoming effective, such as by posting a notification on the Sites or via e-mail. If you continue to access and/or use the Sites after the effective date of such changes, then such access and/or use will be deemed an acceptance of and an agreement to follow and be bound by the Terms as changed. The revised Terms supersede all previous notices or statements regarding the Sites. For this reason, we encourage you to review these Terms any time you access or use the Site, and recommend that you print out a copy for your records. Upon our request, you agree to accept or sign a non-electronic version of these Terms and any other policies or agreements set forth or available on or through the Sites.
You are one of our many visitors or members who are interested in the Project. Our Sites are adult-oriented Sites. Our Sites are not intended for children under the age of 13 and we do not endeavor to attract children under the age of 13. If you are under 13 years of age, please do not use our Sites. There are many web sites out there that are appropriate for you, and you should talk with your parents or legal guardian about what sites are OK for you to visit. Although we cannot absolutely control whether minors gain unauthorized access to our Sites, your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 13 years of age.
The Sites are also directed to users in the United States only.
5. THE SITES DO NOT PROVIDE MEDICAL ADVICE
The contents of the Sites, such as text, graphics, images, information obtained from our licensors, Members, Users, and other material contained on the Sites are for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Sites.
If you think you may have a medical emergency, call your doctor or 911 immediately. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Sites. Reliance on any information provided by PHA, PHA employees, others appearing on the Sites at the invitation of PHA, or other visitors to the Sites is solely at your own risk.
6. INFORMATION WE PROVIDE
We endeavor to make our Sites a place you feel safe coming to, and while we cannot guarantee every statement on the Site is accurately communicated, we do work hard to make sure the information we provide is thorough and accurate. Our goal is to advocate and keep you informed about the Project and related topics. Always keep in mind that health and nutritional information is general in nature and is not a substitute for actual medical or professional advice. Always consult a certified medical or health professional about information you find on our Sites that believe affects you, or before you embark on any diet, exercise, purchase, or lifestyle change. Always look critically at any information presented to you and always read current labels, warnings, and directions before using or consuming a product.
7. NAVIGATING OUR SITES
Give careful thought to the information you submit or post about yourself on our Sites and that you choose to share with other Users, particularly medial/health information. Users are not required to provide medical/health information to use our Sites. If however, you choose to provide medical/health information, please remember that any information that you disclose may become public information. You should exercise caution when deciding whether or not to disclose your medical/health information.
When becoming a Member (for example, when you submit a Soda Story, sign our petition, or sign-up for our newsletter), you will be prompted to provide personal information that allows us to know who you are, such as your name, residence city, state, country, and email address ("Sign-Up Information"). By using our Sites, you represent and warrant that: (a) all Sign-Up Information you submit is truthful, accurate, current and complete; (b) you will maintain the accuracy of such Sign-Up Information by updating and revising it promptly; and (c) your use of our Sites does not violate any applicable law or regulation.
You authorize us to make any inquiries, either directly or through third parties, that we consider necessary to validate your Sign-Up Information. PHA reserves all rights to take legal action against anyone who misrepresents personal information or is otherwise untruthful about their identity, and to suspend or cancel Memberships established using inaccurate or incomplete information. Notwithstanding the foregoing, you acknowledge that we cannot guarantee the accuracy of any information submitted by any User of the Sites, nor any identity information about any User.
You affirm that you are 18 years of age or older, or an emancipated minor, or over the age of 13 and possess legal parental or guardian consent to use the Sites and register for Membership. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement, and that if you are older than 13 years of age but younger than 18 years of age, that your parent or legal guardian has read and accepted this Agreement. Minors who are Members of our site may not have access to all of the benefits of adult Members.
9. SIGN-UP INFORMATION; ACCESS TO OUR SITES
During the sign-up or submission process, you may be asked to enter a screen name ("User Name"). You may select any User Name so long as, in our discretion, your choice of User Name does not cause deception or confusion; nor violates any trademark right, copyright, or other proprietary right; or a name which we deem to be vulgar or offensive. We reserve the right to delete or change any User Name for any reason or no reason. You are fully responsible for all activities conducted through your Membership or under your User Name.
During the sign-up or submission process, you may also be asked to choose a password. You are entirely responsible for maintaining the security of your password. You agree not to use another Member's account or password at any time, or to disclose your password to any third party. You agree to notify us immediately if you suspect any unauthorized use of your Membership or access to your password. You should never respond to an online request for a password other than in connection with the log-on process for the Sites. Your disclosure of your password to any other person is at your own risk. Although we will not be liable for your losses caused by any unauthorized use of your Membership, you may be liable for our losses or the losses of others as a result of such unauthorized use.
You acknowledge that we reserve the right to charge for some or all aspects of the Sites. If your Membership is terminated as a result of your breach of these Terms, your access will be terminated and you shall not be entitled to the refund of any unused portion of fees.
We have the right at any time for any reason or no reason to suspend or terminate your Membership, terminate these Terms, and/or refuse any and all current or future use of the Sites without notice or liability to you. In the event that we suspend or terminate your Membership or these Terms, you understand and agree that you shall receive no refund or exchange for any unused time, any license or subscription fees, any content or data you provided, or for anything else.
We do not provide Internet access. You are solely responsible for any fees associated with your Internet connection.
We reserve the right to interrupt the Sites with or without prior notice for any reason or no reason. You agree that we will not be liable for any interruption of the Sites, delay or failure to perform, and you understand that except as may be otherwise specifically provided for in this Agreement you shall not be entitled to any refunds of fees for interruption of service or failure to perform. We have the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Sites as it sees fit in its sole discretion.
10. NON-COMMERCIAL USE.
Our Sites are for the personal use of Members and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us. Illegal and/or unauthorized use of the Sites, including collecting User Names and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Sites is prohibited. Commercial advertisements, affiliate links, spam, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership. Appropriate legal action may be taken for any illegal or unauthorized use of the Sites.
The web is full of temptations; don’t succumb. Please use common sense and play nice with your and other people's information.
a. Access to Content. You acknowledge that: (i) by using the Sites you may have access to pictures, digital images, graphics, music, video, audio, text and other creative output (collectively, "Content"), and (ii) this Content may be provided under license by independent content providers, including contributions from other Users (all such independent content providers are "Content Providers"). PHA does not typically pre-screen Content, but we may respond to being alerted to objectionable Content by removing such content at our discretion, or pursuant to the Digital Millennium Copyright Act, as outlined in these Terms.
You acknowledge that PHA, Users and other Content Providers have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Sites. You accept full responsibility and liability for your use of any Content in violation of any such rights. You also acknowledge that we are not responsible for any misuse of Content you upload to our Sites by third parties.
b. Ownership of Content; License When you submit or load Content to the Sites, you are giving us permission to host and post it. We don't own it, we just have a digital copy of it. You retain copyright and other intellectual property rights with respect to your Content (such as Soda Stories), to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification to PHA and to other Users of our Sites.
Remember when you upload content to one of our Sites through a Third-Party Platform (such as when you play our Facebook game), this Content is public, or may be, depending upon your privacy settings on that Platform. This Content may be immediately published and available for viewing to any of your Facebook friends or Twitter followers, for example.
What you upload is yours, so take care of it. You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and PHA will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Sites, including without limitation any legal consequences relating to your intellectual property rights; and (iii) PHA's acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of PHA's intention not to require users of the Sites to forego certain intellectual property rights with respect to Content they upload, subject to the terms of this Agreement.
c. The Materials We Own. Of course, we own some things, too. In addition to all digital images, text, layout, look-and-feel, trademarks, and other intellectual property uploaded and/or used on the Sites that is not uploaded by Members, you agree that even though you may retain certain copyright or other intellectual property rights with respect to Content you upload or submit while using the Sites, you are merely granted a limited, revocable license to access the Sites, and you do not own any data PHA stores on PHA’s servers (including without limitation any data representing or embodying any or all of your Content). Your intellectual property rights do not confer any rights of access to the Sites or any rights to data stored by or on behalf of PHA.
The Sites are owned and operated by PHA. The information and materials provided on or through the Sites or pertaining to the Project, including without limitation, any data, text, information, pictures, photographs, audio and/or video material or stills from audiovisual material, graphics, games and applications, Side Code, upgrades for use on the Sites, and other content, features and services (collectively, "PHA’s Content"), are intended to educate and inform you about us and the Project and provide you with access to the Sites. "Site Code" means any and all underlying elements of the Sites, including without limitation source code, scripts, object code, software, computer programs, and other sets of statements or instructions contained in or underlying the Sites.
Except as expressly set forth in the Terms, you may not modify (including without limitation making derivative works), copy, adapt, reverse engineer, de-compile or otherwise reduce to human perceivable format, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, transfer, license or sublicense, publicly display, or sell in any form or by any means, in whole or in part, PHA's Content without our or our licensors' express prior written permission. We reserve all rights not explicitly granted in these Terms. You also agree not to circumvent, disable or otherwise interfere with security-related features of the Sites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Sites or the Content therein.
d. Your Use of Content available through the Sites, including PHA's Content, are provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Your use of the Sites and Content is entirely at your own risk. We reserve all rights not expressly granted in and to the Sites and Content.
You may access Content only as permitted under this Agreement. We reserve all rights not expressly granted in and to the Content and the Sites. You may access Content solely: • for your information and personal use; • as intended through the normal functionality of our Sites; and • for Streaming. "Streaming" means a contemporaneous digital transmission of an audio or audiovisual work via the Internet from our Sites to a User's device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User. Accessing User Content for any purpose or in any manner other than Streaming is expressly prohibited.
Users may have the opportunity to provide comments about Content and any number of topics on the Sites, and these comments are made available to you for your information and personal use solely as intended through the normal functionality of our Sites. Comments are made available "as is," and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of our Sites or otherwise as prohibited under this Agreement.
You agree to not engage in the use, copying, or distribution of any of the Content other than as expressly permitted herein, including any use, copying, or distribution for any commercial purposes of third party Content obtained through the Sites, and that you will hold harmless PHA for any third party use, copying, or distribution of and of the Content you upload.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Sites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Sites or the Content therein.
You understand that when using the Sites, you will be exposed to User Content from a variety of sources, and that PHA is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against PHA with respect thereto, and agree to indemnify and hold PHA, its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors harmless to the fullest extent allowed by law regarding all matters related to your use of the Sites.
e. Additional Terms Applicable to "Soda Stories" The Sites may include a feature allowing Users to submit Content, such as writings, videos, or photos, to share their experience with sugary drinks or to support the Project (“Soda Stories”). You must be at least 13 years old to submit a Soda Story. If you are under the age of 13, please do not use the Sites or submit a Soda Story to us. If you are under the age of 18 but at least 13 years of age, you may submit content only with the permission of, and under the supervision of, a parent or legal guardian. Before submitting content to the Site, you may be asked to sign a Submissions Contract, which is hereby incorporated by reference in these Terms. In case of conflicting terms, the terms of the Submission Contract will control.
Remember that once you have submitted a Soda Story to us, your submission may be distributed publicly without your prior review, posted and shared on the internet, including on the Sites, our social media pages (including without limitation Twitter, Facebook and YouTube), third-party websites, as well as may potentially be distributed or aired nationally in our discretion. You acknowledge that people participating in such websites and media may occasionally make comments or statements, whether intentionally or unintentionally, that may be negative, disparaging, hurtful, inaccurate, misleading, illegal or deceptive. We neither endorse nor are responsible for such statements, or for any opinion, advice, information or other utterance made or displayed in conjunction with your submissions by third persons or parties. We reserve the right to edit, re-shoot, or modify your Soda Story or any portion thereof in our sole discretion, including replacing any voiceover, soundtrack or music or adding a logo or other trademark. You will not receive compensation for your Submissions or for granting any of these rights.
12. FORUMS AND COMMENTS
Our Sites may include features such as ratings, message boards, blogs, chats and/or other forums or areas where you and others can post or transmit information onto or through the Sites including the Third-Party Platforms (collectively, the “Forums”) and may redistribute content you send/upload/post to the Sites.
By sending, posting or transmitting Content to PHA, such as photos, videos, creative suggestions, ideas, notes, concepts, information, or other materials or by posting such Content to any area of the Sites or Third-Party Platforms (including without limitation, the Forums), you grant PHA and our designees and users a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Content in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you or the provider of the Content. In addition, by submitting Content to the Sites, in cases where you display your Content for other Users to view, or when you directly exchange or otherwise provide your Content to other users as permitted by certain Site functionality and the Terms, you hereby grant to such users of the Sites a non-exclusive license to use your Content solely as necessary for such Users to participate in the relevant Site functionality or activity.
None of the your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content. Information and Content contained on our Forums may be provided by persons not affiliated with us. You must not transmit any Content to or through the Sites, Third-Party Platforms or to PHA that you consider to be confidential or proprietary, and any Content shall be deemed non-confidential. You are responsible and liable for any Content you submit.
You are solely responsible for your own Content and the consequences of posting or publishing them. In connection with your Content, you affirm, represent and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and to authorize PHA and PHA’s users to use your Content as necessary to exercise the licenses granted by you in these Terms; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in your Content to use the name or likeness of each and every such identifiable individual person, to enable inclusion and use of your Content in the manner contemplated by PHA and the Terms and (iii) you will pay all royalties and other amounts owed to any person or entity due in conjunction with your submission of your Content on the Sites. If there are any identifiable individuals under the age of 18 in your Content, you must obtain the permission of each such individual's parent or legal guardian prior to submitting the content.
In connection with your Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant PHA all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage PHA, the Project or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person, or (vi) engage in any other activity that is prohibited by the Terms.
You acknowledge and agree that PHA has the right (but not the obligation) to do any or all of the following, at its sole discretion: (i) alter, remove, or refuse to post or allow to be posted or stored any Content or message; (ii) monitor, remove and/or filter any of your communications through the Forums (including without limitation, by means of blocking or replacing expletives or other language that may be deemed harmful or offensive); and/or (iii) disclose any Content or message or any communication through the Forums, and the circumstances surrounding the transmission thereof, to any third party in order to operate the Sites available thereon to (a) protect PHA and its affiliates, employees, officers, directors, shareholders, agents, representatives and affiliates, and the Sites’ users and visitors; (b) to comply with legal obligations or governmental requests; and (c) to enforce these Terms; or for any other reason or purpose.
Notwithstanding anything stated herein, by submitting or posting Content you represent and warrant that (a) you own or otherwise control all of the rights including without limitation, all copyrights, to your Content or are otherwise legally entitled to post the Content; (b) the Content is accurate; (b) use of the Content you supply does not violate the Terms and will not cause injury to any person or entity; and (d) you will indemnify PHA and/or its subsidiaries and affiliates for all claims resulting from any content, information, and ratings, including without limitation, all Content, you supply, provide or transmit to PHA or the Sites. PHA has the right, but not the obligation, to monitor and edit or remove any activity or content. PHA takes no responsibility and assumes no liability for any content, materials or Submissions posted by you or any third party. PHA RESERVES THE RIGHT TO REMOVE ANY CONTENT THAT IT DETERMINES IN ITS SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING OR APPEARING ON THE SITES OR IN CONJUNCTION WITH THE PROJECT.
PHA may store Content indefinitely. However, PHA has no obligation to store Content or make Content available to you in the future and Contents may be destroyed without your permission with no liability to PHA for doing so.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and PHA will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Sites, including without limitation any legal consequences relating to your intellectual property rights; and (iii) PHA’s acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of PHA’s intention not to require users of the Sites to forego certain intellectual property rights with respect to Content they upload, subject to the terms of this Agreement.
13. COMMUNICATIONS WITH OTHERS USERS; INFORMATION AVAILABLE IN OUR FORUMS
You acknowledge and agree that your communications with other Users via the Forums are public and not private communications, and that you have no expectation of privacy concerning your use of the Forums. You acknowledge that any personal information that you communicate via the Forums may be seen and used by others and may result in unsolicited communications. PHA strongly encourages you not to disclose any personal information about yourself in your communications via the Forums. PHA is not responsible for information that you choose to communicate via the Forums or Content you submit.
It’s our playground, but we don’t always know what’s going on. You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post Content or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, illegal or deceptive. We neither endorse nor are responsible for such Content or statements, or for any opinion, advice, information or other utterance made or displayed on the Sites, or in any Forums by third persons or parties.
The opinions expressed in the Forums reflect solely the opinion(s) of the participants of the Forums and do not necessarily reflect the opinion(s) of PHA. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in Content or for any results obtained from the use of any such statements or information. Under no circumstances will PHA or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on the Content or on any information or materials obtained through the Sites or Third-Party Platforms. We have no obligation to monitor the Sites or Third-Party Platforms, Forums, or any Content or other materials that you or other third persons or parties transmit or post on the Sites or in the Forums.
14. RIGHT TO TERMINATE MEMBERSHIP AND ACCESS
We reserve the right to refuse service, terminate accounts, remove or edit the Sites, in our sole discretion. In the event your access or Membership is terminated or cancelled by you or by PHA, you may no longer have access to the Sites or certain features or areas of the Sites. No Content or time spent on the Sites will be converted to cash or any other form of compensation.
15. YOUR CONDUCT
We respect you and expect you to do the same while you are online visiting our Sites. You are free to use and enjoy the Sites for your non-commercial benefit, but you may not engage in behavior that could undermine the stability or security of the Sites, subject us to legal liability, do anything that would compromise the trust we have with our users, or use our Site for anything but its intended uses, namely, learning about, and participating in, the Project.
In cases where we allow community Forums, we ask that you use your company manners when sharing information with others, and not harass, defame, use inflammatory or objectionable language, or engage in inappropriate activity while on the Sites. The same is true for any Content you might upload to our Sites, where we allow it: please make certain those images are ones you own, are not offensive or inflammatory, and do not infringe the rights of others. While we typically do not generally review Content that our customers share with each other, we may remove community discussions or other customer content if we have been alerted that content is offensive or under our standards. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates any of these terms, including without limitation, removing the offending communication from the Sites and terminating the Membership of such violators.
You agree that you shall not:
• Take any action or upload, post, e-mail or otherwise transmit Content that infringes or violates any third party rights; • Impersonate any person or entity without their consent, including, but not limited to, an PHA employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; • Make unauthorized use of any PHA trademarks or service marks; • Take any action or upload, post, e-mail or otherwise transmit Content that violates any law or regulation; • Take any action or upload, post, e-mail or otherwise transmit Content as determined by PHA, in its sole discretion, that causes a tort, is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; • Take any actions or upload, post, e-mail or otherwise transmit Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; • Take any action or upload, post, email or otherwise transmit any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); • Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that PHA considers in its sole discretion to be of such nature; • Interfere with or disrupt the Sites or servers or networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites; • Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Sites, including any games or apps; • Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Site, including our games and apps; or (2) the enjoyment of the Site, including our games and applications, by any other person; • Interfere or attempt to interfere with the proper functioning of the Site, including ours games and apps, or connect to or use the Site, including any games or apps, in any way not expressly permitted by these Terms of Service; • Attempt to gain access to any other Member's Membership account or password; or • "Stalk," abuse or attempt to abuse, or otherwise harass another User. Any violation by you of the terms of the foregoing sentence may result in immediate and permanent suspension or cancellation of your Membership.
You agree that PHA may take whatever steps it deems necessary to abridge, or prevent behavior of any sort on the Sites in its sole discretion, without notice to you.
16. PROMOTIONS AND SPECIAL FEATURES OR PROGRAMS
We may also offer our Users the opportunity to participate in raffles, contests and sweepstakes. In each case, please check the rules associated with the particular promotion to determine your eligibility and to review any privacy concerns you may have.
17. PRIVACY, MAILINGS.
By indicating you want to receive e-mails from us (such as when signing-up to an email newsletter), you are consenting to receive e-mails from us about the Project, our services, and other news. These Terms will apply to all such e-mails (and such e-mails will be considered part of PHA’s Content). If you indicate that you would like to be contacted by third parties, you agree that PHA may share your information, including e-mail address, with such third parties.
18. THIRD-PARTY OFFERINGS
The Sites may include links to other web sites or services solely as a convenience to Users (“Linked Sites”). PHA does not endorse any such Linked Sites or the information, material, products, or services contained on other Linked Sites or accessible through other Linked Sites. Furthermore, PHA makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. Access and use of Linked Sites, including the information, material, products, and services on Linked Sites or available through Linked Sites, is solely at your own risk, and you acknowledge that PHA shall not be responsible or liable, directly or indirectly, for any loss or damage caused or alleged to be caused by your use of any Linked Site. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. You agree that PHA will not be 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 such advertisers on the Sites.
A possibility exists that Content on the Sites or any Third Party Platform could include inaccuracies or errors, or information or materials that violate the Terms. Additionally, a possibility exists that unauthorized alterations could be made by third parties to the Sites and any Third Party Platforms. Although PHA attempts to ensure the integrity of the Sites, including our services on Third Party Platforms, we make no guarantees as to the Sites’ completeness or correctness. In the event that a situation arises in which the Sites’ completeness or correctness is in question, please contact us at email@example.com (with the subject line “Inaccuracies in Sites or on [Third Party Platform Name]”) with, if possible, a description of the material to be checked and the location (URL) where such material can be found on the Sites, as well as information sufficient to enable us to contact you. We will try to address your concerns as soon as reasonably practicable.
20. SYSTEM OUTAGES.
PHA may periodically schedule system downtime for the Sites for maintenance and other purposes. Additionally, unplanned system outages may occur. You agree that PHA has no responsibility and is not liable for: (a) the unavailability of the Sites; (b) any loss of materials, data, transactions or any other information or materials caused by such system outages; (c) the resultant delay, mis-delivery, or non-delivery of data, transactions or any other information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation, any companies or servers hosting the Sites, any Internet service providers, any Third Party Platforms, or any Internet facilities and networks.
21. INTELLECTUAL PROPERTY
If it’s not yours, please don't take or abuse it. All right, title and interest in and to the trademarks and copyrights contained on the Sites, and to the other content included on the Sites, including, without limitation, text, graphics, logos, buttons, button icons, images, audio and video clips, digital downloads, and data compilations, are the property of PHA, or the property of a third party that has licensed its content to PHA.
You acknowledge that Sites and PHA’s Content are protected by and/or embody copyrights, moral rights, trademarks, patents, trade secrets and/or other proprietary rights (“Intellectual Property”) owned by PHA, and/or its licensors, including without limitation the selection, coordination, arrangement, compilation, assembly and any enhancements thereto. The Sites (and any Intellectual Property and other rights relating thereto) are and will remain the property of PHA, its affiliates and/or third-party licensors. The trademarks, trade names, trade dress, logos, and service marks displayed on the Sites, including the KICK THE CAN marks, logos and trade dress are the registered and/or unregistered trademarks of PHA, PHA’s licensors and vendors and/or other third parties. You acknowledge that the Intellectual Property is valid and protected in all media existing now or later developed and under United States and foreign laws. You acknowledge that you do not acquire any ownership rights in or to the Intellectual Property. If it’s not yours, please use it responsibly. You may use the information contained on our Sites for the purpose for which it was intended. You may not reproduce, redistribute or otherwise use any materials on the Sites without the express written consent of PHA. You may enjoy the materials on the Sites and use them for your personal enjoyment and in the non-commercial manner for which they were intended.
The Intellectually Property may not be used by you for any purpose without PHA’s prior express written permission, unless permissible by law. Notwithstanding the foregoing, the Intellectual Property may not be used in connection with any product or service that is not PHA’s, in any manner that is likely to cause confusion among consumers, or in any manner that discloses confidential information or disparages PHA or the Project. Nothing contained on the Sites or available on any Third Party Platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property. Except as expressly provided in a separate license agreement, PHA and its licensors do not grant any express or implied rights to you under any patents, copyrights, trademarks, or trade secret information. All rights not expressly granted are reserved.
If it’s not yours, please don’t modify it. You agree you will not distribute, publish, transmit, modify, display or create derivative works from or exploit the contents of our Sites in any way. You agree to indemnify, defend and hold harmless PHA for any and all unauthorized uses you may make of any material on our Sites.
A. TRADEMARKS AND COPYRIGHTS GENERALLY. KICK THE CAN, The KickTheCan logo and trade dress, and all other related trade names, graphics, logos, trademarks, and service marks used on the Sites are owned, controlled by PHA or licensed to PHA and may not be used by you for any purpose without PHA’s prior express written permission. Copyright © PHA 2011. All rights reserved.
B. DIGITAL MILLENNIUM COPYRIGHT ACT. If you believe in good faith that a User has infringed your copyright(s), you can request that we take down the infringing material(s) by following the steps in this DMCA compliance process. Please note that we do not make any legal decisions about the validity of your claim.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing, or that the material or activity was removed or disabled by mistake may be subject to liability. Please also be advised that we enforce a policy of terminating the accounts of repeat infringers. A repeat infringer includes any user who has made two or more postings for which we receive a notice of infringement under this DMCA Notice and Takedown Procedure. If you are unsure of whether certain material infringes your copyright, contact an attorney.
• Filing a DMCA Notice
If you believe that your copyright-protected work has been copied and posted on the Sites in a way that constitutes copyright infringement, then please send us a written letter ("notice") by fax, regular mail or by email. Your Notice must: 1. Provide reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL); 2. Provide reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material); 3. Provide information sufficient to permit us to contact you directly: your name, street address, telephone number, and email (if available); 4. If possible, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred); 5. Include the following statement: “I 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”; 6. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; 7. Be signed; 8. Be sent to our DMCA designated agent at the following address: DMCA Agent PHA PO Box 2309 Davis, CA 95617 Email:firstname.lastname@example.org Fax: 626.956.0576(on the cover sheet, please write: Attention: DMCA NOTICE Kick the Can).
• Filing a Counter-Notice
If material that you have posted to a PHA Site has been taken down, you may file a counter-notification (“Counter-Notice”):Your Counter-Notice must:
1. Describe and list all material(s) that were removed by PHA and the location at which the material(s) appeared before it/they was/were removed. Please provide the specific profile or other unique identifying information so that we may have reasonably sufficient information to identify the item(s). The information provided should be as detailed as possible; 2. Provide your name, address, telephone number and email address (if available); 3. State that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States); 4. State that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or, if your address is outside of the USA, for any judicial district in which PHA, may be found, and that you will accept service of process from the person (or an agent of such person) who provided the DMCA Notice to us. 5. Include the following statement: “I swear under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.” 6. Be signed. 7. Be sent to our designated DMCA designated agent at the following address: DMCA Agent PHA PO Box 2309 Davis, CA 95617 Email: email@example.com Fax: 626.956.0576 (on the cover sheet, please write: Attention: DMCA COUNTER-NOTICE Kick the Can).
22. ADDITIONAL LEGAL TERMS a. No Warranty Please visit our Sites at your own risk. The Sites are provided “as is,” on an as-available basis and PHA expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. We are not liable for any direct, indirect, incidental, special, or consequential damages (including attorneys' fees and lost profits or savings) to you connected with use of the Sites, including its content and regardless of any negligence by us. PHA does not guarantee that the functions contained on the Sites will be uninterrupted or error-free, that this website or its server will be free of viruses or other harmful components, or that defects will be corrected even if PHA is aware of them.
We trust you understand that PHA disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of, or in any way related to: (1) any errors in or omissions from the Sites, including, but not limited to, technical inaccuracies and typographical errors; (2) any third party websites, platforms or content therein directly or indirectly accessed through links in this website; (3) any information which is posted by any third party, including, without limitation, information posted on any related blog; (4) the unavailability of the Sites or any portion of the Sites; (5) your use of the Sites; or (6) your use of any equipment or software in connection with the Sites.
b. Additional Limitations of Liability. (1) When using the Sites, you may accumulate Content that resides as data on our servers. THESE DATA, AND ANY OTHER DATA, MEMBERSHIP HISTORY AND USER NAMES RESIDING ON PHA'S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN PHA'S SOLE DISCRETION. (2) To the extent permitted under applicable law, in no event will PHA be liable for any indirect, incidental, special exemplary, or consequential damages arising out of or in connection with the Sites or these Terms, including without limitation, any damages resulting from loss of use, data, or profits, whether or not PHA has been advised of the possibility of such damages, on any theory of liability; (3) If you are dissatisfied with any portion of the Sites, your sole and exclusive remedy is to discontinue use of the Sites. (4) PHA's aggregate maximum potential liability to you for all claims arising from or related to the site (including products and services sold therein) shall be the greater of (i) the total amount paid by you to PHA in the twelve (12) months prior to the claim less the pro-rata value of any service you received during that period; or (ii) one U.S. dollar ($1). Multiple claims will not increase this limit. (5) You agree that the damage exclusions in these Terms shall apply even if any remedy fails of its essential purpose.
c. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
d. Indemnification. You agree to indemnify, defend, and hold harmless PHA, its officers, directors, partners, employees, consultants, and agents, from and against any third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (1) any claim of intellectual property infringement relating to any Content, idea or proposal you submit to us; (2) your violation of these Terms or any applicable laws or regulations; or (3) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful programming routines input by you into the Site.
e. Notice. Except as explicitly stated otherwise, legal notices will be served on PHA’s national registered agent or to the email address you provide to PHA during the registration process. Notice will be deemed given twenty-four hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Sites. In such case, notice will be deemed given three days after the date of mailing.
f. Notice for California Users. Under California Civil Code Section 1789.3, California Sites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
g. Waiver. The failure of PHA to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by PHA.
h. Governing Law Jurisdiction. When you use the Sites, you are agreeing that your use shall be governed by and construed in accordance with the laws of the State of California in the United States of America, as they apply to agreements made and solely performed in the state of California. Disputes arising based on this website or in any way related to this website shall be exclusively subject to the jurisdiction of the Federal Courts of the United States of America and/or the State Courts of California.
i. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
j. Assignment. These Terms and any related policies, agreements and guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by PHA without restriction.
23. QUESTIONS: If you have questions about our TOS, please send an email to firstname.lastname@example.org.