Terms Of Use - Burbstar

PLEASE CAREFULLY READ THESE TERMS OF USE (“TERMS OF USE”) BEFORE USING THIS WEB SITE, AS USE OF THE WEB SITE IS CONDITIONAL UPON ACCEPTANCE OF THESE TERMS, WHICH AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. DO NOT USE THIS WEB SITE OR PURCAHSE PRODUCTS IF YOU DO NOT AGREE.

Welcome to the website (however accessed) and other interactive features or downloads (e.g., widgets) that are accessible or downloadable through, or related to, the website and owned by Burbstar LLC (“Burbstar”). Burbstar provides you access to https://burbstar.com (“Site”) and the information and other materials available on and through the Site, subject to your compliance with the terms and conditions set forth below.

Your access to and use of the Site (whether browsing, viewing or interacting with the Site or otherwise) is subject to the following terms and conditions and all applicable laws. We may change these Terms of Use at any time without notice so check it each time you visit the Site. By accessing and browsing our Site, or posting a link to the Site on your or another site, you accept, without limitation or qualification, these terms and conditions. If you do not agree to them, please DO NOT USE THIS SITE. Your continued use of our Site evidences your agreement to be bound by each of the then posted Terms of Use and Privacy Policy (click to hyperlink) and constitutes a legally binding contract between you and Burbstar. You agree that Burbstar may provide to you required notices, agreements and other information concerning the Site to you electronically. Burbstar will post the notices on the homepage of the Site or on the relevant web page of the applicable service. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of the Site. In some instances, both these Terms of Use and a separate terms of service or guidelines document setting forth additional conditions may apply to a service or product offered via the Site (“Additional Terms”). To the extent there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

Registration and Password

Certain portions of our Site, including, but not limited to, when you make purchases, may require registration. You agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Site’s registration form (such information being the “Registration Data”) and (b) 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 Burbstar has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Burbstar has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). You may be required to create a user name, password and account designation upon completing the registration process. User names should not include your full name and we recommend that you select a fanciful name. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You may never use or access another person’s account without permission, impersonate another user, or seek another user’s password or personally identifiable information. You agree to (a) immediately notify Burbstar of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Burbstar will not be responsible or liable for any loss or damage arising from or in connection with your failure to comply with this requirement, any unauthorized access to your password or your failure to adequately protect your password.

Burbstar’s Intellectual Property Rights and Limited License

All text, graphics, layout, images, audio and/or video, designs, advertising copy, logos, trade names and marks, service marks and trade identities, multimedia content or other material that you see or read on the Site (including, past, present and future versions), and all related technology and code (the “Materials”) are owned or being used with permission by Burbstar, and may not be used except as provided in these Terms of Use. Burbstar grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, view and/or play one copy of the Materials (excluding source and object code) on any single computer for your personal, non-commercial use only, provided that: • you keep intact all copyright and other proprietary notices contained in the original Materials or any copy you may make of the Materials; • you make no modifications to the Materials, except as specifically permitted by us; • you do not allow or aid or abet any third party (whether or not for your benefit): o to copy or adapt the object code of the Site’s software, HTML, JavaScript or other code; and/or o reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Site creates to generate its web pages or any software or other products or processes accessible through the Site; • you do not insert any code or product to manipulate the Materials in any way that affects any user’s experience; and

You further agree that you will not: • modify, frame, reproduce, archive, sell, lease, rent, exchange, encumber, hypothecate, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose (except as specifically permitted by us); and/or • use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard search engine or internet browser usage).

Burbstar reserves the right to modify the license granted in this section and the restrictions described in this section in writing on the Site, including, without limitation, by charging fees therefor and/or making certain features available through the Site that may invite you to use the Materials in a manner not described above. Burbstar may add, change, discontinue, remove or suspend any of the Materials at any time, without notice and without liability. Any attempt by you to sublicense, transfer or assign the Material will be void.

Submissions

While we are looking forward to receiving your materials when we specifically ask for them or invite you to post them, it is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and then subject to any specific terms, conditions and requirements that may apply thereto. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, you agree that any User Content (defined below) you do transmit to us electronically or otherwise will be treated as non-confidential and we may use such any way we want with no obligation to you.

You are solely responsible for all communications and all materials you transmit or submit to Burbstar, whether created by or for you, including, but not limited to, questions, comments, graphics, information, ideas, writings, music, sound, images, files, photos, audiovisual effects, artwork, text, literary materials, code, data, information, design elements, graphics, suggestions, concepts, biographical information, notes, messages, audiovideo, video, hypertext links, scripts or other material (“User Content”). As more fully set forth elsewhere in these Terms of Use, you may not submit User Content that contains any pornographic, infringing, hate-related, violent or illegal content.

Burbstar does not claim ownership of any communication or material you submit or make available for the Site by electronic e-mail or otherwise and you are entirely responsible for everything you upload, post, email or otherwise make available on the Site and you retain ownership thereof; provided, however, that by uploading, posting, emailing or otherwise making available any User Content on the Site or otherwise to us, you hereby unconditionally and irrevocably transfer and assign to Burbstar, its parent and its and their affiliates, subsidiaries, successors, assigns and licensees, in perpetuity, the royalty-free right and license (with the right to sublicense) to use, reproduce, modify, adapt, publish, translate, create derivative works from, incorporate into other works, distribute, perform, display and otherwise exploit the User Content you send to Burbstar, in all languages and throughout the universe, in any form, media or technology now known or hereafter devised. You acknowledge and expressly agree that any such communications or materials you transmit or post may be used by Burbstar, its parent and its and their affiliates, subsidiaries, successors, assigns and licensees, for any purpose whatsoever, including, without limitation, developing, manufacturing and marketing products using such information, and you hereby waive the right to receive any financial or other consideration in connection with such information, including, without limitation, credit. You also agree that Burbstar may disclose any of same, or any part thereof, to any third party for any reason, including, without limitation, if disclosure is required or is reasonably necessary to comply with the law or any legal process, or any law enforcement request, to enforce Burbstar’s rights, to analyze or respond to third party claims or generally protect Burbstar and its users. Any modification of this submission policy and license must be in writing and signed by an authorized Burbstar signatory. The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to any reversion.

Fan Sites and Use of Site Content Off-Site

Solely in connection with your personal website pages dedicated to Burbstar or your activities on the Site (“fansite”), we grant you, on a non-exclusive basis, revocable (at Burbstar’s sole discretion) permission to reproduce and redistribute on the fansite to end users, certain Burbstar images, graphics or artwork and certain Burbstar trademarks and logos that Burbstar may expressly designate on the “Downloads” portion of the Site (“Licensed Site Content”) coming in the future, so long as you comply with the terms and conditions described here and on the Site, as those terms and conditions may be modified from time to time in Burbstar’s sole discretion. Without limitation, the following terms and conditions apply to such permitted use of Licensed Site Content off-Site:

1. You must include a prominent link to the Site’s homepage in connection with any of your use of Licensed Site Content permitted hereunder.

2. As the operator of an independent, unaffiliated web site, you will have sole editorial control over the fansite, except that you represent and warrant to Burbstar that the fansite will not post material that is illegal or infringes on the rights of third parties, harms the reputation of Burbstar, its parent or affiliate companies, or its officers or employees. If at any time you post any such material, this permission automatically terminates. Your ownership in the fansite excludes any Licensed Site Content (excluding elements you submitted) and/or Burbstar trademarks and excludes any derivative works to the extent based upon or including Materials and/or Burbstar’s trademarks. The fansite is not a “Joint Work” as that term is defined in the copyright law, title 17 United States Code. Additionally, any use or distribution by you of any Licensed Site Content, including without limitation, by email must comply with all applicable laws.

3. You agree to include, and not remove or alter, Burbstar’s trademark, copyright or other proprietary rights notices, as provided on the fansite and email page(s) when displaying any Licensed Site Content and/or Burbstar trademarks, and you agree to comply with usage guidelines that may be provided by Burbstar from time to time. You agree that all goodwill that arises in connection with your use of Burbstar trademarks in uses exclusively to Burbstar and agree not to challenge Burbstar’s ownership or control of any Burbstar trademarks, nor use or adopt any trademarks that might be confusingly similar to such Burbstar trademarks.

4. Burbstar reserves all rights, title and interest in and to all Materials and Burbstar trademarks which are not expressly granted. You shall not sale, rent, lease, reproduce, modify, translate or create derivative works of Materials except as expressly permitted herein, nor create any derivative works (including, without limitation, fiction or visual art) from, or in any way exploit, any of the Materials, without the express written permission of Burbstar. You may not host the Site or any Site activity or use any of the Site’s tools, applications or software, including without limitation the Site’s communications and/or show creation tools. The Materials (excepting only the elements you submitted) you are given a limited permission to use remain owned or controlled by Burbstar and you may not make any commercial use thereof nor may the fansite or email page(s) on which they exist, sell, rent or lease, or advertise or promote, any products, services or commercial activity. The creation and sale of merchandise based on any aspect of the Site or upon Materials (excepting only the elements you submitted) or Burbstar trademarks is expressly prohibited.

5. If you intend to charge a subscription or access fee to generate revenue from the fansite, you are required to notify us before you do so. The limited permission granted here with respect to fansite use of certain Materials and Burbstar trademarks does not cover such circumstances.

6. Under no circumstances will Burbstar be liable to you for any direct, indirect, incidental, consequential, special or exemplary damages of any kind in connection with this permission. Burbstar reserves the right, in its sole discretion, to expressly refuse this permission to any particular fansite or user, or to revoke this permission at any time (in Burbstar’s sole discretion).

The content of the Site includes copyrighted materials, trademarks and other proprietary information, which may include, without limitation, text, software, photos, video, audiovisual materials, graphics, music and sound. The entire contents of the Site are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Burbstar owns a copyright in the selection, coordination, arrangement and enhancement of such materials, as well as in the content original to Burbstar. Third-party content providers own the copyright in content that is original to them. “BURBSTAR”, the “Burbstar logo”, “HOSEMAN”, “GRILLMAN”, “RAKEMAN” as well as other marks that may appear on the Site, are the service and trademarks of Burbstar. All other trademarks, service marks and logos used on this Site, with or without attribution, are the trademarks, service marks or logos of their respective owners. Without Burbstar’s written permission, you agree not to display or use, in any manner any such marks and all goodwill associated with any use by you thereof will inure exclusively to Burbstar or their respective owners. In addition, elements of the Site are protected by trade dress and other federal and state intellectual property laws and may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of Burbstar.

No Implied Endorsements The appearance of any celebrities, persons, content or trademarks on the Site is not intended to suggest an endorsement or sponsorship of our Site unless an endorsement or sponsorship is expressly made by Burbstar.

Advertising, Links, Linking and Other Sites

This Site contains links to pages on other sites, and those sites may offer products, services or other resources. Because Burbstar has no control over such sites and resources, you acknowledge and agree that Burbstar has no responsibility for the accuracy of information provided by or availability via other sites. Links to external sites do not constitute an endorsement by Burbstar of the sponsors of such sites or the content, products, advertising or other materials presented on those sites. Burbstar does not author, edit or monitor these pages or links. You further acknowledge and agree that Burbstar is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on these other sites or resources.

From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties (e.g., advertisers) as a result of your use of the Site. All such communication, interaction and participation is strictly and solely between you and such third party and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the third party or any goods or services you may purchase or obtain from any third party).

Burbstar hereby grants you a non-exclusive, limited licensee, revocable at Burbstar’s discretion, for you to link to Burbstar’s home page from any site you own or control that is not commercially competitive to Burbstar and does not criticize or otherwise injure Burbstar, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material. Such a link is not an endorsement of such other site(s) by Burbstar. All of Burbstar’s rights and remedies are expressly reserved.

Representations and Warranties

You represent and warrant to Burbstar that: (i) you have all requisite power and authority, to enter into these Terms of Use, conduct yourself and to execute, deliver, and perform all of your obligations under these Terms of Use; (ii) you have provided, and will continue to provide, information that is correct and current; (iii) you are the owner or authorized licensee-or the authorized agent of the owner or authorized licensee-of your User Content and have full legal, technical and editorial control of the same with respect to your use on the Site; (iv) you have the right to grant the licenses granted under these Terms of Use and the consent of no third party is required; (v) your performance under these Terms of Use and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which you are currently bound or will become bound in the future; (vi) your performance under these Terms of Use will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; and (vii) you will participate solely for the purposes intended and expressly permitted. You further represent and warrant that your User Content and any other information or material you submit or make available to others during your participation, and Burbstar’s use thereof pursuant to these Terms of Use, (a) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including, without limitation, any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right or result in Burbstar having any third party payment or other obligations as a result of its exercise of the rights granted by you hereunder; (b) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (c) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party’s use of the Site; (d) do not promote illegal or harmful activities or substances (including, without limitation, activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances); and (e) are not illegal, unlawful or contrary to the laws or regulations in any jurisdiction where, as applicable, your User Content or participation are created, displayed or accessed. You agree, represent and warrant that you will pay all royalties, fees, and any other consideration owing any party by reason of your User Content being on or available through the Site or resulting from Burbstar’s exercise of its rights granted by you hereunder.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE SITE IS AT YOUR SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SITE IS PROVIDED “AS IS” , “AS AVAILABLE” AND “WITH ALL FAULTS BASIS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BURBSTAR, ITS PARENT, SUBSIDIARIES AND AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, AGENTS, VENDORS OR CONTRACTORS (COLLECTIVELY, THE “BURBSTAR PARTIES”) DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO): (A) THE SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE APPLICATIONS AND/OR DOWNLOADABLE ITEMS ASSOCIATED WITH THE SITE; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS OR SERVICES OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO BURBSTAR OR VIA THE SITE. IN ADDITION, THE BURBSTAR PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE AND ANY SITE-RELATED MATERIALS.

IN ADDITION, THE BURBSTAR PARTIES DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SITE WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. UNDER NO CIRCUMSTANCES WILL BURBSTAR BE LIABLE IN ANY WAY FOR ANY MATERIAL, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIAL POSTED, EMAILED OR OTHERWISE TRANSMITTED VIA THE SITE. IF YOU FIND ANY MATERIAL ON THE SITE OBJECTIONABLE, DO NOT USE THE SITE.

THE BURBSTAR PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE IS AT YOUR SOLE RISK. THE BURBSTAR PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE BURBSTAR PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT. BY ACCESSING OR USING THE SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.

THE BURBSTAR PARTES DO NOT ENDORSE THE USER CONTENT, ARE NOT RESPONSIBLE FOR THE USER CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER CONTENT) FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY USER CONTENT PROVIDED THROUGH THE SITE.

Termination, Discontinuance and Interruptions

Burbstar may, in its sole discretion, terminate your use of the Site for any reason, including, without limitation, if Burbstar believes that you: (1) violated or acted inconsistently with the letter or spirit of these Terms of Use or otherwise acted inappropriately; (2) infringed the intellectual property right of a third party; (3) provided any information that Burbstar is unable to verify or authenticate; or (4) uploaded or transmitted unauthorized User Content to the Site. You agree that any termination of your access to the Site may be effected without prior notice to you.

BURBSTAR MAINTAINS THE RIGHT TO DISCONTINUE OPERATION OF THE SITE, OR YOUR USE OF THE SITE, IN EITHER CASE, IN WHOLE OR IN PART, AT ANY TIME, IN ITS DISCRETION, WITH NO OBLIGATION TO YOU, IN WHICH CASE YOUR ACCOUNT MAY BE TERMINATED, ANY POSTINGS OR OTHER CONTENT MAY BE DESTROYED.

Burbstar reserves the right to interrupt the services with or without prior notice for any reason or no reason. You agree that Burbstar will not be liable for any interruption of the service, delay or failure to perform, and you understand that except as otherwise specifically provided in Burbstar’s written billing policies (including, but not limited to, The Secure Shopping Terms and Conditions of Sale (click to hyperlink) and Burbstar has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the services as it sees fit in its sole discretion.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL THE BURBSTAR PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITE; (B) THE MATERIALS; (C) THE APPLICATIONS AND/OR DOWNLOADABLE ITEMS ASSOCIATED WITH THE SITE; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE BURBSTAR PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITE’S TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE BURBSTAR PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE BURBSTAR PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE BURBSTAR PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE BURBSTAR PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE BURBSTAR PARTIES, OR OTHER EQUITABLE RELIEF, AND, WITHOUT LIMITATION, YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS LICENSED TO OR OWNED OR CONTROLLED BY THE BURBSTAR PARTIES.

BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

Indemnity

You agree to defend, indemnify and hold the Burbstar Parties harmless from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: • User Content; • your use of the Site or activities in connection with the \ Site; • your breach or anticipatory breach of these Terms of Use; • your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; • information or material transmitted through your computer, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; • any misrepresentation made by you; or • the Burbstar Parties’ use of your information, content or submissions.

You will cooperate as fully required by the Burbstar Parties in the defense of any claim. The Burbstar Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Burbstar Parties.

Equipment

You agree to be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Site, and you shall be responsible for all charges related thereto.

Privacy and Monitoring

Your activity on the Site is subject to our Privacy Policy (click to hyperlink); provided, however, we are not responsible for third party use of information you publicly post or make available on the Site.

Burbstar may monitor and record your communications and activities on the Site and you consent thereto and agree that such will be deemed User Content to which all of Burbstar’s rights hereunder apply.

BURBSTAR MAY MONITOR YOUR COMPUTER AND ITS OPERATING SYSTEM, INCLUDING WITHOUT LIMITATION, RANDOM ACCESS MEMORY, HARD DRIVES, CENTRAL PROCESSING UNIT, IP ADDRESS, ETC., FOR THE PURPOSES OF IMPROVING THE SITE AND/OR SERVICE AND TO POLICE AND ENFORCE THE TERMS AND CONDITIONS OF THESE TERMS OF USE.

A Special Note about Children, Children’s Privacy and Our Compliance with the Children’s Online Privacy Protection Act

In compliance with the Children’s Online Privacy Protection Act (COPPA), we are a general audience site and do not intend to collect any PII from children under thirteen (13) years of age, unless we believe such collection to be permitted by law. Our Site targets an audience that is over the age of fourteen (14) and some content may not be appropriate for all ages. Parental supervision is recommended. If you are the parent or guardian of a child under thirteen (13) and believe that he or she has disclosed PII to us, please contact us at Privacy@Burbstar.com. Upon request, the parent or guardian of a child under thirteen (13) may review and request the deletion of such child’s PII, as well as refuse to permit the further collection or use of such PII.

Distribution Limitations and Territorial Restrictions

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Burbstar to any registration requirement within such jurisdiction or country. This Site is controlled and operated by Burbstar from its offices within the State of Arizona, U.S.A. and Burbstar makes no representation that materials on the Site are appropriate or available for use in other locations. Those who choose to access this Site from other locations do so on their own initiative and risk and are responsible for compliance with local laws regarding online conduct and acceptable content, if and to the extent local laws are applicable. Use of or access to the Site shall not be construed as the purposeful availment of the benefits or privilege of doing business in any state other than the State of Arizona by Burbstar.

Software related to or made available by this Site may be subject to United States export controls. Thus, no software from this Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.

Governing Law and Disputes

The Terms of Use shall be governed by and construed in accordance with the internal laws of the United States and the State of California governing contracts entered into and to be fully performed in the state of California (i.e., without regard to conflict of laws provisions) regardless of your location. You acknowledge that the rights granted and obligations made hereunder to Burbstar are of a unique and irreplaceable nature, the loss of which shall irreparably harm Burbstar and which cannot be replaced by monetary damages alone so that Burbstar shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any). Except with respect to the interpretation, protection or enforcement of Burbstar’s claimed intellectual property rights or right to seek injunctive relief (which will only be subject to arbitration if the parties mutually agree), you agree that any suit, action or proceeding arising out of or relating to these Terms of Use or any of the transactions contemplated herein or any contests or services thereon (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association (“AAA”). The arbitration shall be held in Los Angeles, California. The arbitrator shall apply the substantive laws of the State of California, shall issue a written decision, and shall have the power to award any legal remedies consistent with this Agreement except for punitive, exemplary or special damages. The parties expressly incorporate into these Terms of Use the terms of California Code of Civil Procedure Sections 1283 and 1283.05 pertaining to pre-hearing discovery. The parties will split the arbitrator’s fee; provided, however, if applicable law requires Burbstar to pay the arbitrator’s fee in order for the arbitration provision to be enforceable, Burbstar shall have the discretion to elect to pay such fees and proceed to arbitration. You agree that the provisions in this paragraph will survive any termination of your account(s). You irrevocably agree that any and all disputes, claims and causes of action you may have in connection with or related to Burbstar or their site will be resolved individually, without resort to any form of class action.

Severability

If any provision of these Terms of Use or the Privacy Policy are found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the remainder, which will remain in force; the parties agree that the court should endeavor to give the fullest possible effect to the parties’ intentions as reflected in the provision and shall not affect the validity and enforceability of any remaining provisions.

Waiver

Any delay or failure on the part of Burbstar to exercise or enforce any rights under these Terms of Use to which it may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief.

Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action, arising out of or related to, use of the Site or these Terms of Use must be filed in an applicable tribunal within one (1) year after such claim or cause of action arose or be forever barred. Assignment

You may not delegate, assign or transfer your rights or obligations, Terms of Use, in whole or in part, by operation of law or otherwise, without the prior written consent of Burbstar. Any attempted assignment in violation of this Section will be null and void and no force and effect. Burbstar may assign this Agreement, in whole or in part, freely at any time without notice. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of each party’s permitted successors and assigns.

Entire Agreement; Modification and Termination

Burbstar reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available on the Site, including but not limited to your User Content, communications and account, and any functionality or features in or on the Site, in each case, in whole or in part, including the cessation of all activities associated with the Site, with or without notice. You agree that Burbstar shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any part thereof. Furthermore, Burbstar reserves the right to charge for use of the Site, in whole or in part, and to change its fees from time to time in its discretion.

Burbstar reserves the right to change or modify these Terms of Use at any time. These Terms of Use shall not be modified except in writing, as posted on this Site by Burbstar. Any change or modification made by Burbstar will be effective immediately upon posting on the Site and your continued use of the Site means that you have agreed to accept any changes or modifications made by Burbstar. You should therefore periodically visit this page to review the most recent Terms of Use.

Burbstar LLC – Tempe, AZ

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