OVER THE SHOULDER TERMS OF USE

1. This Terms of Use Agreement (Agreement) is made by and between Over the Shoulder, Inc., an Illinois corporation, 10608 W 163rd Place, Orland Park, IL 60467, United States, and you the user (“you,” “your,” or “User”).

This Agreement contains the complete terms and conditions (“Terms”) that govern the use of the “Over the Shoulder” software application ("Application").  BY ACTIVATING, ACCESSING, USING OR ATTEMPTING TO INTERACT WITH OR USE ANY PART OF THIS APPLICATION, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACTIVATE, ACCESS OR USE ANY PART OF THIS APPLICATION.  OVER THE SHOULDER RESERVES THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THIS AGREEMENT AT OVER THE SHOULDER’S DISCRETION.  CONTINUED USE OF ANY PART OF THIS APPLICATION CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.

2. ACCESS TO THIS APPLICATION. To access the Application, you may be asked to provide certain registration details or other information. It is a condition of your use of this application that all the information you provide will be correct, current, and complete. If Over the Shoulder believes the information you provide is not correct, current, or complete, Over the Shoulder has the right to deny access to the Services, and to terminate or suspend your access to the application at any time.

3. APPLICABLE USE OF APPLICATION. You may use the Application for purposes expressly permitted by these Terms. As a condition of your use of the Application, you warrant to Over the Shoulder that you will not use the Application for any purpose that is unlawful or prohibited by these Terms.

4. NO CO-BRANDING. You may not use or authorize any party to use Over the Shoulder’s name, logos, trademarks, or other means of attribution or identification that will give the impression that you have or any other party has the right to display, publish, or distribute this Application or related Services, without the express prior written permission of an authorized representative of Over the Shoulder.  Furthermore, you agree to cease any such unauthorized use immediately upon notice from Over the Shoulder.

5. NO UNLAWFUL ACCESS.  In addition, you agree that you will not use the Application in any manner that could in any way disable, overburden, damage, or impair the Application or otherwise interfere with anyone’s use and enjoyment of the Application. You further agree that you will not obtain, or attempt to obtain, any materials, content, or information by any means not expressly made available or provided for through authorized use of the Application.

6. PERSONAL AND NON-COMMERCIAL USE LIMITATION.  The Application is for your personal use, unless otherwise specified. You may not re-sell, distribute, allow others to use, or use the Application for any other purpose, including any commercial purpose, without the prior express written permission of an authorized representative of Over the Shoulder. 

7. PROPRIETARY INFORMATION. All content found on or in connection with the Application (the "Content"), including the “Over the Shoulder” trademark and “Over the Shoulder” Logo is considered the copyrighted and trademarked intellectual property of Over the Shoulder, or of any party that created and/or licensed the Content to Over the Shoulder.  No rights or title to the Application or any Over the Shoulder Services shall be considered transferred or assigned to the User. You agree not to copy, distribute, republish, modify, create derivative works from the Application, without the prior written consent of Over the Shoulder.  You may not modify, copy, distribute, display, send, perform, reproduce, publish, license, create derivative works from, transfer, sell or otherwise infringe on any intellectual property rights related to any information, content, software, products or services obtained from or otherwise connected to this Application.

8. SUBMISSIONS. You hereby grant to Over the Shoulder a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated by you to Over the Shoulder through the Services, including the Application (hereinafter, the "Submission"), and to incorporate any Submission in other works in any form, media, or technology now known or later developed. You agree that Over the Shoulder will not be bound to treat any Submission as confidential, except where protected by law, and may use any Submission in its business including without limitation, for evaluating Survey results and presenting results to its clients, without incurring any liability for royalties or any other consideration of any kind (apart from the consideration consented to as part of the original Agreement between you and Over the Shoulder), and will not incur any liability as a result of any similarities that may appear in future Over the Shoulder operations or business.

9.  USE OF COMMUNICATION SERVICES.  Over the Shoulder’s Over the Shoulder Application, and its Services, is designed to allow you to share information with Over the Shoulder, including photographs, email, message or communication facilities (collectively, "Communications Services"). You agree to use the Communication Services only to post, send and receive messages and content that are considered proper and related to the Application.  Among other actions, when using a Communication Service, you agree that you will not send, submit, publish, or transmit in connection with this Application, or cause to be posted, sent, submitted, published or transmitted, any material that:

(i) you do not have the right to transmit, including any proprietary material of any third party protected by intellectual property laws (or by rights of privacy or publicity);

(ii) advocates illegal activity, discusses an intent to commit an illegal act or violates any law;

(iii) is vulgar, obscene, pornographic, or indecent;

(iv) threatens or abuses others;

(v) is libelous or defamatory towards others;

(vi) is racist, abusive, harassing, threatening or offensive;

(vii) seeks to exploit or harm children by exposing them to inappropriate content, or asking for personally identifiable details or information;

(viii) harvests or otherwise collects information about others, including e-mail addresses and photographs, without their consent;

(ix) impersonates or misrepresents your connection to any other entity or person or otherwise manipulates information to disguise the origin of content;

(x) falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is transmitted to Over the Shoulder (e.g., copyright, trademark or patent notices);

  (xi) includes programs that contain computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications device; or

   (xii) disobeys any policy or regulations including any code of conduct or other guidelines, established from time to time regarding use of this Application.

You acknowledge that your Submissions may be subject to legal limits on use, reproduction and/or dissemination and you are responsible for abiding by such limitations. Notwithstanding these rights, you remain solely responsible for the content of your Submissions. You acknowledge and agree that Over the Shoulder will not assume or have any liability for any action made by you with respect to any Submission.

10. RIGHT TO TERMINATE ACCESS. Over the Shoulder reserves the right to monitor use of the Application to determine compliance with these Terms, as well as the right to edit or refuse to use any information or materials, in whole or in part. Over the Shoulder may terminate your access to the Application at any time without notice for any reason whatsoever.

11. DISCLOSURE UNDER LAW. Over the Shoulder reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. Over the Shoulder reserves the right to fully cooperate with any law enforcement authorities or court order requesting or direction Over the Shoulder to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms of Use.

BY ACCEPTING THIS AGREEMENT YOU WAIVE ALL RIGHTS AND AGREE TO HOLD OVER THE SHOULDER HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OVER THE SHOULDER DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OVER THE SHOULDER OR LAW ENFORCEMENT AUTHORITIES.

12. PERSONALLY IDENTIFIABLE INFORMATION.  Over the Shoulder agrees that it will treat any personally identifying information that you submit through this Application in accordance with the terms outlined in its Privacy Policy.  By accepting the Terms and using the Application, you are also consenting to Over the Shoulder’s Privacy Policy.

13. DISCLAIMER & LIMITATIONS ON LIABILITY. You understand that Over the Shoulder stands behind its Application’s security, but that it does not guarantee or warrant that the Application will be free of code that may cause damage or harm to your computer or network. You acknowledge that you will be solely responsible for implementing sufficient procedures and checkpoints to protect your computer(s) and network(s), and that you will maintain adequate means of backup of your personal data, external to the Application.

YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK. THE APPLICATION IS PROVIDED AS IS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED.  OVER THE SHOULDER DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. OVER THE SHOULDER DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATION OR THE SERVICES THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OVER THE SHOULDER DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF ANY CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE USER ACKNOWLEDGES THAT THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND OVER THE SHOULDER MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS APPLICATION OR ITS CONTENT. OVER THE SHOULDER MAKES NO WARRANTIES THAT YOUR USE OF THE APPLICATION WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY ORRESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH APPLICATION.

OVER THE SHOULDER, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF OVER THE SHOULDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL THE COLLECTIVE LIABILITY OF OVER THE SHOULDER AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO OVER THE SHOULDER FOR THE APPLICATION OR SERVICE OUT OF WHICH LIABILITY AROSE.

14. INDEMNITY. You agree to indemnify and hold Over the Shoulder, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the Indemnified Parties) harmless from any breach of these Terms by you, including any use of the Application other than as expressly authorized in these Terms. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys' fees of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed from this Application.

15.TRADEMARKS AND COPYRIGHTS. Trademarks, service marks, logos, and copyrighted works ("intellectual property") appearing in this Application, including OVER THE SHOULDER, and the OVER THE SHOULDER LOGO, are the property of Over the Shoulder.  Over the Shoulder retains all rights with respect its intellectual property. All contents of the Application are: Copyright © 2010 Over the Shoulder LLC. All rights reserved.

16. SECURITY. Any passwords used for the Application are for your personal and individual use only. You will be responsible for the security of your password(s). From time to time, Over the Shoulder may require that you change your password. You are prohibited from using any Application or facilities provided in connection therewith to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security is strictly prohibited.  Over the Shoulder reserves the right to investigate suspected violations of these Terms.

17. MISCELLANEOUS. These Terms of Use will be governed and interpreted pursuant to the laws of Illinois, notwithstanding any principles of conflicts of law. You specifically consent to personal jurisdiction in Illinois in connection with any dispute between you and Over the Shoulder arising out of these Terms of Use or pertaining to the subject matter hereof. The parties to these Terms each agree that the exclusive venue for any dispute between the parties arising out of these Terms will be in the state and federal courts in Chicago, Illinois.

If any part of these Terms of Use is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.   These Terms of Use constitute the entire agreement among the parties relating to this subject matter and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between the user and Over the Shoulder with respect to the Application. Notwithstanding the foregoing, any additional Terms on this site will govern the items to which they pertain.   Over the Shoulder may revise these Terms of Use at any time by updating this posting.

 

18.  Effective Date

This is Version 2 of the Terms of Use.  The Effective Date is 5/25/2012.

19. Contacting Us

 

If you have any questions about these Terms, please send an email with your questions to:

admin@overtheshoulder.com