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Terms

38PITCHES.COM’S WEB SITE
TERMS AND CONDITIONS (“Terms”)

Please read the following Terms carefully before using any of 38pitches.com’s and its affiliates’ (collectively, “38pitches.com,” “our,” or “we”) web sites, including but not limited to the www.38pitches.com Web Site, as well as any online features, services and/or programs offered by 38pitches.com (collectively, the “Web Site”). By accessing or using the Web Site, you agree to the following Terms. You should review these Terms regularly as they may change at any time at the sole discretion of 38pitches.com. If you do not agree to any portion of these Terms, you should not access or otherwise use the Web Site. “Content” refers to any text, materials, documents, images, graphics, logos, design, audio, video and any other information provided from or on, uploaded to and/or downloaded from the Web Site, other than User Content, which is discussed in Paragraph 8.

We will make an effort to update this web page with any changes to these Terms and/or to the services described in these Terms and you are encouraged to review these Terms frequently (the date of the most recent revision to these Terms appear at the end of these Terms).

1. CONVENIENCE AND INFORMATION ONLY; ACCEPTANCE OF TERMS. By merely providing access to the Web Site, 38pitches.com does not warrant or represent that: (a) the Content and/or the User Content is accurate, complete, up-to-date or current; (b) 38pitches.com has any obligation to update any Content and/or User Content; (c) the Content and the User Content is free from technical inaccuracies or typographical errors; (d) that the Content and/or User Content does not infringe on the intellectual property rights of any third party; (e) that the Content and/or the User Content is free from changes caused by a third party; (f) your access to the Web Site will be free from interruptions, errors, computer viruses or other harmful components; and/or (g) any information obtained in response to questions asked through, or postings made on, the Web Site is accurate or complete.

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as THE WEB SITE IS NOT INTENDED FOR CHILDREN UNDER 13 THAT ARE UNACCOMPANIED BY HIS OR HER PARENT OR LEGAL GUARDIAN.

2. SITE USE AND CONTENT. You may view, copy or print pages from the Web Site solely for personal, non-commercial purposes. You may not otherwise use, modify, copy, print, display, reproduce, distribute or publish any information from the Web Site without the express, prior, written consent of 38pitches.com. At any time, we may, without further notice, make changes to the Web Site, to these Terms and/or to the services described in these Terms.

3. USER ACCOUNT, PASSWORD AND SECURITY.

(a) USER ACCOUNT. For certain types of features available through the Web Site (for example, to post comments to the Web Site), you will be required to create an account (“User Account”) at WordPress.com (www.wordpress.com/signup/), and your use of the account shall at all times be governed by the Terms of Service of WordPress.com located at www.wordpress.com/tos/. We encourage you to review and become familiar with the WordPress Terms of Service in order to understand your obligations with respect to your User Account. Your User Account is at all times the property of WordPress.com and 38pitches.com has no responsibility for your User Account or what use is made of your User Account. If you have any questions regarding your User Account, you should contact WordPress.com at www.wordpress.com/contact-support/.

(b) ACCURATE INFORMATION. In creating and using your User Account, you agree to: (i) provide true, accurate, current and complete information about yourself on any registration form required (such information being the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or 38pitches.com or WordPress.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, 38pitches.com and WordPress.com has the right to suspend or terminate your User Account and refuse any and all current or future use of your User Account.

4. DISCLAIMERS.

(a) NO WARRANTIES; INDEMNIFICATION. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK. THE WEB SITE AND THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. 38PITCHES.COM PROVIDES THE WEB SITE ON A COMMERCIALLY REASONABLE BASIS AND 38PITCHES.COM MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEB SITE, THE CONTENT, THE USER CONTENT OR ANY SERVICES OFFERED IN CONNECTION WITH THE WEB SITE ARE OR SHALL REMAIN UNINTERRUPTED OR ERROR-FREE, THE CONTENT AND/OR USER CONTENT SHALL BE NON-INFRINGING ON ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, THAT DEFECTS SHALL BE CORRECTED, THAT THE WEB PAGES ON THE WEB SITE OR THE SERVERS USED IN CONNECTION WITH THE WEB SITE ARE OR SHALL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PERSON USING THE WEB SITE WILL BE THE PERSON THAT HE OR SHE REPRESENTS HIMSELF OR HERSELF TO BE. 38PITCHES.COM DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEB SITE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT 38PITCHES.COM SHALL HAVE ADEQUATE CAPACITY FOR THE WEB SITE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.

(b) INDEMNIFICATION. You agree to defend, indemnify and hold 38pitches.com and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by 38pitches.com, directly or indirectly, with respect to or arising out of: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; (iv) your violation of any third party right, including without limitation any copyright, property, or privacy right; and/or (v) any claim that your User Content caused damage to a third party.

5. LIMITATION OF LIABILITY. 38PITCHES.COM’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE WEB SITE AND/OR ANY SERVICE PROVIDED IN CONNECTION WITH THE WEB SITE SHALL BE THE CANCELLATION OF YOUR USER ACCOUNT. IN NO EVENT WILL 38PITCHES.COM BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEB SITE AND/OR ANY SERVICE PROVIDED IN CONNECTION WITH THE WEB SITE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEB SITE AND/OR ANY SERVICE PROVIDED IN CONNECTION WITH THE WEB SITE, INCLUDING, BUT NOT LIMITED TO, (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEB SITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEB SITE, AND/OR (V) ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS THAT MAY BE TRANSMITTED TO OR THROUGH THE WEB SITE BY ANY THIRD PARTY OR FOR ANY LOSS OR DAMAGE OF ANY KIND. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS 38PITCHES.COM’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

The Web Site is not a substitute for the advice of a competent legal professional. If legally binding advice is being sought, please retain the services of your own lawyer.

6. PRIVACY. Personal data that you provide regarding yourself will be handled in accordance with 38pitches.com’s Privacy Policy [see the link on the Home page].

7. THIRD PARTY CONTENT.

(a) 38pitches.com may provide hyperlinks to other web sites maintained by third parties, or 38pitches.com may provide third party content on the Web Site by framing or other methods. THE LINKS TO THIRD PARTY WEB SITES ARE PROVIDED FOR YOUR CONVENIENCE AND INFORMATION ONLY. THE CONTENT ON ANY LINKED WEB SITE IS NOT UNDER 38PITCHES.COM’S CONTROL AND 38PITCHES.COM IS NOT RESPONSIBLE FOR THE CONTENT OF LINKED WEB SITES, INCLUDING ANY FURTHER LINKS CONTAINED IN A THIRD PARTY WEB SITE. IF YOU DECIDE TO ACCESS ANY OF THE THIRD PARTY WEB SITES LINKED TO THE WEB SITE, YOU DO SO ENTIRELY AT YOUR OWN RISK.

(b) If a third party links to the Web Site, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture or partnership by or with 38pitches.com. In most cases, 38pitches.com is not even aware that a third party has linked to the Web Site. A web site that links to the Web Site: (i) may link to, but not replicate, 38pitches.com’s Content; (ii) may not create a browser, border environment or frame 38pitches.com’s Content; (iii) may not imply that 38pitches.com is endorsing it or its products; (iv) may not misrepresent its relationship with 38pitches.com; (v) may not present false or misleading information about 38pitches.com’s products or services; and (vi) should not include content that could be construed as distasteful, offensive or controversial, and should contain only Content that is appropriate for all age groups.

8. USER CONTENT.

(a) The Web Site does or may now permit the submission of various forms of content submitted by you and other users (“User Content”) and the hosting, sharing, and/or publishing of such User Content. 38pitches.com does not guarantee any confidentiality with respect to any submissions of User Content to us. By using the Web Site you may be exposed to User Content that is offensive, indecent or objectionable. The User Content posted by any user of the Web Site is not under 38pitches.com’s control and 38pitches.com is not responsible for such User Content. If you decide to access any of the User Content, you do so entirely at your own risk.

(b) You shall be solely responsible for the User Content that you submit and the consequences of posting or publishing it. You represent, and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize 38pitches.com to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content as 38pitches.com deems appropriate; and, to the extent applicable, and (ii) you have the written consent, release, and/or permission of each identifiable individual person in the User Content to use the name or likeness of each such person to enable inclusion and use of the User Content in the manner contemplated by the Web Site and these Terms. You retain all of your ownership rights in your User Content. However, by submitting the User Content to 38pitches.com, you hereby grant 38pitches.com a worldwide, non-exclusive, royalty-free, irrevocable, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Web Site and 38pitches.com’s (and its successor’s) business. You also hereby grant each user of the Web Site a non-exclusive license to access your User Content through the Web Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Web Site and under these Terms.

(c) You agree to not use the Web Site to: (i) upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, false, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm minors in any way; (iii) impersonate any person or entity, including, but not limited to, a 38pitches.com official, employee or monitor; (iv) falsely state or otherwise misrepresent your affiliation with any person or entity; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Web Site; (vi) upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of an employment relationship or under a nondisclosure or confidentiality agreement); (vii) upload, post, email, transmit or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to post the material and to grant 38pitches.com all of the license rights granted herein; (viii) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, spam, phishing schemes, pyramid schemes, or any other form of solicitation; (ix) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (x) interfere with or disrupt the Web Site or any of the servers or networks connected to the Web Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Web Site; (xi) intentionally or unintentionally violate any applicable local, state, national or international law; (xii) stalk or otherwise harass another; or (xiii) collect or store personal data about other users.

(d) You acknowledge that 38pitches.com does not pre-screen User Content, but that 38pitches.com and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move and/or remove any User Content that is available on or through the Web Site. Without limiting the foregoing, 38pitches.com and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content or User Content, including any reliance on the accuracy, completeness or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content or User Content created by 38pitches.com or submitted to or appearing on the Web Site.

(e) You acknowledge and agree that 38pitches.com may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims that any User Content violates the rights of any third parties; or (iv) protect the rights, property or personal safety of 38pitches.com, its users and/or the public.

(f) 38pitches.com does not endorse any User Content or any opinion, recommendation or advice expressed therein, and 38pitches.com expressly disclaims any and all liability in connection with User Content. 38pitches.com does not permit copyright infringing activities and infringement of intellectual property rights on the Web Site, and 38pitches.com will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. 38pitches.com reserves the right to remove Content and User Content without prior notice. Without limiting 38pitches.com’s right to cause the termination of a User Account for any or no reason, 38pitches.com will also cause the termination of a User Account if he or she is determined to be a repeat infringer. A repeat infringer is a user of the Web Site who has been notified of infringing activity more than twice and/or has had User Content removed from the Web Site more than twice. 38pitches.com also reserves the right to decide whether User Content is appropriate and complies with these Terms for violations other than violations of intellectual property law, such as, but not limited to, obscene or defamatory material. 38pitches.com may remove such User Content and/or cause the termination of a User Account for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.

(g) If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyright rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (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 an address, telephone number, and, if available, an email address; (v) the following statement: “I have a good faith belief that the use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law”; and (vi) 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.” Please also sign the submission that you make to the Copyright Agent.

38pitches.com’s designated Copyright Agent to receive notifications of claimed infringement is: DMCA Agent, 5 Clock Tower Place, Maynard, Massachusetts 01754, email: dmca@38studios.com. For clarity, only DMCA notices should go to the DMCA Agent; any other feedback, comments, requests for technical support, and other communications should be directed to 38pitches.com. You acknowledge that if you fail to comply with all of the requirements of this Paragraph 8(g), your DMCA notice may not be valid.

9. COPYRIGHT AND TRADEMARKS. The trademarks, service marks and logos used and displayed on the Web Site are 38pitches.com’s, or its subsidiaries’ or affiliates’, registered and unregistered trademarks. 38pitches.com is the copyright owner or authorized licensee of all text and all graphics contained on the Web Site. All trademarks and service marks of 38pitches.com that may be referred to on the Web Site are the property of 38pitches.com. Other parties’ trademarks and service marks that may be referred to on the Web Site are the property of their respective owners. Nothing on the Web Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of 38pitches.com’s trademarks or service marks without 38pitches.com’s prior written permission. 38pitches.com aggressively enforces its intellectual property rights. Neither the name of 38pitches.com nor any of 38pitches.com other trademarks, service marks or copyrighted materials may be used in any way, including in any advertising, hyperlink, publicity or promotional materials of any kind, whether relating to the Web Site or otherwise, without 38pitches.com’s prior written permission, except that a third party web site that desires to link to the Web Site and that complies with the requirements of Paragraph 7(b) above may use the name “38pitches.com” in or as part of that link.

If you believe that any Content or User Content on the Web Site violates any intellectual property right of yours other than a copyright right (which is covered by Paragraph 7 above, please contact 38pitches.com at the address, email address or telephone number set forth at the bottom of these Terms.

10. LOCAL LAWS. 38pitches.com makes no representation that content or materials in the Web Site are appropriate or available for use in jurisdictions outside the United States. Access to the Web Site from jurisdictions where such access is illegal is prohibited. If you choose to access the Web Site from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. 38pitches.com is not responsible for any violation of law. You may not use or export the Content or materials in the Web Site in violation of U.S. export laws and regulations. You agree that the Web Site shall be deemed solely based in the State of Massachusetts, and the Web Site shall be deemed a passive website that does not give rise to personal jurisdiction over 38pitches.com, either specific or general, in jurisdictions other than the State of Massachusetts. These Terms shall be governed by and construed and enforced in accordance with the laws of the State of Massachusetts, United States of America, without reference to conflict of laws principles. You agree and hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the State of Massachusetts. You further agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the United States).

11. AVAILABILITY. Information that 38pitches.com publishes in the Web Site may contain references or cross-references to products, programs or services of 38pitches.com that are not necessarily announced or available in your area. Such references do not mean that 38pitches.com will announce any of those products, programs or services in your area at any time in the future. You should contact 38pitches.com for information regarding the products, programs and services that may be available to you, if any.

12. TERMINATION OF SERVICE. We may terminate your account or right to access secured portions of the Web Site at any time, without notice, for conduct that we believe violates these Terms and/or is harmful to other users of the Web Site, to 38pitches.com, to the business of the Web Site’s Internet service provider, or to other information providers.

13. CUSTOMER COMMENTS. We welcome the submission of comments, information or feedback through the Web Site. By submitting information through the Web Site, you agree that the information submitted shall be subject to the 38pitches.com Web Site Privacy Policy [see the link on the Home page].

14. MISCELLANEOUS. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and 38pitches.com’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

Your Consent To This Agreement

By accessing and using the Web Site, you consent to and agree to be bound by the terms of the foregoing Terms. These Terms of Service, together with 38pitches.com’s Web Site Privacy Policy [see the link on the Home page] and any other legal notices published by 38pitches.com on the Web Site, shall constitute the entire agreement between you and 38pitches.com concerning the Web Site. If we decide to change these Terms, we will make an effort to post those changes on the web page so that you will always be able to understand the terms and conditions that apply to your use of the Web Site. Your use of the Web Site following any amendment of these Terms will signify your assent to and acceptance of its revised terms.

If you have additional questions or comments of any kind, or if you see anything on the Web Site that you think is inappropriate, please let us know by email at info@38studios.com or by sending your comments to:

38pitches.com
5 Clock Tower Place
Maynard, Massachusetts 01754
Attn: Customer Care – Web Site Issues
(978) 310-5100
info@38studios.com

Copyright © 2007. 38pitches.com. All Rights Reserved.

EFFECTIVE AS OF: MARCH 20, 2007
LAST UPDATED: MARCH 28, 2007

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