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TERMS OF USE

diacly.com (“Diacly,” “we,” “us,” or “our”) welcomes you. This Terms of Use Agreement (“Agreement”) explains your rights and obligations in using the websites of diacly.com and its affiliates.  Such websites, and all activities thereon, constitute the “Service” or the “Services”.  Please read this Agreement carefully.  By continuing to use the website, you are telling us that have read it, that you understand, and that you agree to everything in this document. 

AS-IS

You agree to use the Services as-is.  UNLESS THE DISCLAIMER OF SUCH WARRANTIES IS PROHIBITED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT ACCESS TO THE SERVICES BY ANY MEANS IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND WE DO NOT MAKE ANY WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES, EITHER EXPRESS OR IMPLIED, SUCH AS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR PROVIDE ADEQUATE, COMPLETE OR TIMELY INFORMATION OR DATA.

SUBJECT TO CHANGE

You agree that we may change or discontinue the Services at our sole discretion and with no prior notice to you.

SOLE CONSIDERATION

You agree that our sole offer to you in connection with the Services is to provide them as-is, or as modified by us in our sole discretion, until such time as we should choose to discontinue the Services or any component of the Services.

REGISTERED USER CONTENT; LICENSES

As noted above, the Platform provides Registered Users with the ability to post and upload Registered User Content. You expressly acknowledge and agree that once you submit your Registered User Content for inclusion into the Platform, it will be accessible by others and that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT diacly.COM, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR REGISTERED USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM, AND YOU WILL INDEMNIFY US IN RESPECT OF ANY LOSS, LIABILITY, CLAIM, OR DAMAGE SUFFERED OR INCURRED BY US IN CONNECTION WITH YOUR REGISTERED USER CONTENT.

You retain all copyrights and other intellectual property rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for-profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Platform, diacly.com, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Registered User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Registered User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.

If you submit Registered User Content to us, each such submission constitutes a representation and warranty to diacly.com that such Registered User Content is your original creation (or that you otherwise have the right to provide the Registered User Content), that you have the rights necessary to grant the license to the Registered User Content under the prior paragraph, and that it and its use by diacly.com and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.

DIGITAL MILLENNIUM COPYRIGHT ACT

diacly.com respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

Copyright Agent
diacly.com
1458 S San Pedro ST Unit 309
Los Angeles, CA 90015           
[email protected]

If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the Content, or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA.  Any court in Los Angeles, California may enforce the arbitrator’s award.  The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Los Angeles, California.  The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. In addition, we may litigate in court to seek injunctive relief.

YOUR LIABILITY

You are fully responsible for how you use our Services.  You agree to indemnify and hold harmless us and our directors, officers, employees, service providers, vendors, and agents from and against any and all losses, liabilities, claims, damages or expenses (including attorneys’ fees and court costs and expenses) arising from or related to any use of the Services by you or that occurs because of you.

STANDARD OF CARE

You agree that our sole obligation to you is to provide the Services as-is.  You agree that unless we do something that is grossly negligent or an act of willful misconduct in connection with the Services, we will not be liable to you or to any third party. 

LIMITATIONS ON LIABILITY

If for any reason, we are judged liable to you, you agree that your recovery will be limited to your actual damages, measured by actual out-of-pocket economic loss.  You agree that you will not ask for any consequential, special, punitive, or exemplary damages, or indirect or lost profits.  You agree that even if you request these types of damages, a court or arbitrator cannot award them to you.  You understand and agree that the price of these services would be significantly higher but for these limitations on liability. 

WE’RE NOT RESPONSIBLE FOR ALL CIRCUMSTANCES

You also agree that we are not responsible for anything beyond our control.  For example, we are not liable:  for Service interruptions caused by problems with the communications network; for problems caused by any Internet service provider; for your computer or its programs failing; for the acts of criminal attackers, whether in real-time or automated (e.g., viruses); or for errors in the information provided to us upon which we reasonably rely.  These are only examples.

TERMINATION BY US

We reserve the right to terminate this Agreement, at our sole discretion.  We may terminate this Agreement prior to sending you a written notification.  For example, we will terminate the account of any user who threatens or harasses any other user.

AMENDMENTS

We may change the Services and this Agreement at any time, at our sole discretion.  If you continue to use the Services more than one week after we post a material change, that will mean you accept the changes.  If you do not accept the changes, your sole right is to stop using the Services.