TERMS OF USE AGREEMENT

PLEASE READ THIS TERMS OF USE AGREEMENT ("AGREEMENT") CAREFULLY BECAUSE IT DESCRIBES YOUR RIGHTS AND RESPONSIBILITIES

Data Genesis International, LLC (“DGI”, "we," "us," or "our") offers web sites, including www.gonenotforgotten.com (“GNF”, “GNF.com”, “GNF website” or “website”). GNF is an online resource for obituary news, memorials, charitable causes, ideas and philosophies - all intended to honor the memory of the deceased.

This is the official Agreement between DGI and you, regarding GNF. By using or attempting to use GNF, you certify that you understand, agree to, and will abide by all the terms and conditions of this Agreement, and any additional terms that govern certain registrations, products or services offered via GNF which may be presented in conjunction with those products and services ("Additional Terms"). To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state that this Agreement will control. In cases where there are no Additional Terms stated for any such registrations, products or services, this Agreement will control. The Agreement governs only the content, features, and activities related to GNF. Unless specifically stated, this Agreement does not cover your rights and responsibilities with respect to third-party content or any links that may direct your browser or your connection to third-party websites or pages.

 

PARENTAL ADVISORY

GNF is not directed to children younger than 13 and is offered only to users 13 years of age or older (the "Age Requirement"). Parental discretion is advised. If you are not yet 13 years old, please do not use GNF. If you are between 13 and 17 years of age, please review this Agreement with your parents/guardians before using GNF. Until you are 18 years old, by using GNF you certify that your parents/guardians have consented to your use and agreed to this Agreement on your behalf, and you acknowledge and agree that your use of GNF is at their discretion. Until you are 18 years old, your parents/guardians may ask us to modify, deny access to, or terminate your account and we may do so at their request or any time, for any reason, without notice or liability. Accordingly, you agree to provide your parents/guardians with your valid password and e-mail address for GNF at all times, for verification purposes.

 

MODIFICATIONS TO THIS AGREEMENT

We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices of material changes on the Site and we may also e-mail you about these changes. Once we post them on the Site, these changes become effective immediately and if you use the Site after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us.

 

Modifications to the gnf Web Site

DGI reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, GNF (or any part thereof) with or without notice. DGI will not be liable to you or to any third party for any modification, suspension or discontinuance of GNF.

 

PRIVACY POLICY

Your use of GNF is subject to our Privacy Policy, which (among other things) describes the personally identifiable information (“Personal Information”) we collect, use, disclose, manage and store. To view our Privacy Policy, please visit http://www.GNF.com/privacy.php

 

GNF Products and Services

Registered Users may create and maintain their own GNF products and services within GNF. Such products and services may consist of user-generated Content, online guest books, virtual items, embeddable widgets and other features that enable users who visit the products and services (such as obituary, guestbook, widget) to communicate with each other.

In the Member’s sole discretion, he or she may:

• change the obituary's access permissions (whether restricted or public) at any time;

• delete any Content posted to the obituary or associated guest book.

GNF may offer products or services that are “permanent,” for a “lifetime,” or “eternal” (the “Lifetime Products”), and others that indicate that they will survive for a fixed duration (such as one year) (the “Fixed Duration Products”). Subject to its suspension, cancellation, and termination rights and rights to remove Content and other material, DGI will use commercially reasonable efforts to ensure that Lifetime Products remain on GNF for so long as DGI owns and maintains GNF. Fixed Duration Products will remain on GNF for the duration specified (such asone year), unless: (a) GNF ceases to exist in whole or in part during the relevant period; or (b) acts or events beyond DGI’s reasonable control cause a deletion, loss of data, failure to store, or other interruption in or termination of the availability of GNF or the applicable product or service to which the Member or user has subscribed.

 

General Practices Regarding Use and Storage

DGI may establish general practices and limits concerning use of GNF, including, for example, limits on the number of:

 

• days that memory book postings or other uploaded content and Content will be retained

• obituaries which you may enhance / edit

• files (including graphics, photographs, videos, or sound/music files) that may be posted

• disk space that will be allotted on DGI servers on your behalf, and

• times you may access GNF in a given period of time (and the maximum duration of your visits to GNF).

 

You agree that DGI has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content, provided by you or otherwise, maintained or transmitted by DGI and its affiliated websites.

 

Reliance on Medical, Legal, Financial, Investment and Other Information

GNF presents resources for informing, sharing, and creating a community among GNF Visitors and Registered Members. GNF’s intent is not to provide exhaustive information or advice on a particular topic. This content does not necessarily reflect our views, and we do not represent or guarantee the truthfulness, accuracy, or reliability of such content, nor do we endorse or support any opinions expressed by Visitors, Members or Third Parties. In no event will we have or be construed to have any responsibility or liability for or in connection with any such content. Any legal, financial, educational, medical or mental health information displayed on or available through GNF is for your own personal, non-professional use. It should not be considered professional advice and you should always consult the advice of a professional before taking any actions or decisions. THIRD PARTY SITES

The appearance, availability, or your use of URLs or hyperlinks referenced or included anywhere on GNF, or any other form of link or re-direction of your connection to, with, or through GNF ("Outside Sites"), does not constitute an endorsement by, nor does it incur any obligation, responsibility, or liability on the part of DGI, its successors and assigns, or any of their respective officers, directors, employees, agents, representatives, licensors, licensees, Advertisers, suppliers, and operational service providers. We do not verify, endorse, or have any responsibility for any Outside Sites, their business practices (including their privacy policies) or any goods or services associated with or obtained in connection with any such Outside Site, whether DGI's logo or sponsorship identification is on such Outside Site as part of a co-branding or promotional arrangement. When dealing with such Outside Sites (as when dealing with any product or service provider), you should use your best judgment and exercise caution as appropriate. If any Outside Site obtains or collects Personal Information from you, in no event will we assume or have any responsibility or liability.

 

LICENSES; warranties

GNF does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications or other materials ("Content") that you post on or through GNF. After posting your Content to GNF, you continue to retain any rights you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through GNF, you grant us a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and distribute such Content on or through GNF, including, without limitation, in any media formats and through any media channels. This does not grant us the right to sell or otherwise distribute your Content outside of GNF. After you remove your Content from GNF we will cease distribution as soon as we can, and at that time, the license will terminate, provided, however, that we may retain archived copies of your Content, and may continue to include, use, or display it in published materials (such as books, television products, etc) created before such removal of your Content. Notwithstanding the foregoing, the license you grant us for Content included in obituaries or obituary notices (the “Obituary Content”) will be irrevocable. Registered Members may request that DGI take down Obituary Content by contacting support@gonenotforgotten.com but DGI will not be obligated to do so. The license you grant us is non-exclusive (meaning you are free to license your Content to anyone else), worldwide, fully-paid and royalty-free (meaning we need not pay you for the use on GNF of the Content that you post) and sub-licensable (so that we may use our affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide GNF).

GNF also contains Content of DGI ("DGI Content"). DGI Content is protected by copyright, trademark, patent, trade secret and other laws, and DGI owns and retains all rights in the DGI Content and GNF. DGI hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the DGI Content (excluding any software code) solely for your personal use in connection with viewing and using GNF. GNF also contains Content of Members and other DGI licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through GNF. You acknowledge that you will evaluate and bear any risks related to your use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. All Content posted to GNF is the sole responsibility of the person who originally posted the Content, and your sole recourse for any damage you may suffer as a result of Content will be to such individual.

You represent and warrant that: (i) you own the Content posted by you on or through GNF or otherwise have the right to grant the license set forth herein, (ii) the posting of your Content on or through GNF does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity, (iii) you are not a minor and you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions, or, if you are a teenager older than 13, your parent or legal guardian has agreed to this Agreement on your behalf, (iv) all of the information provided by you is correct, complete, and current, and (v) you hold and will continue to hold all the ownership, license, proprietary, and other rights necessary to enter into, authorize, grant rights, and perform your obligations under this Agreement. You further agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you on or through GNF.

 

UNAUTHORIZED CONTENT

We may perform technical functions necessary to offer GNF, including, without limitation, transcoding and/or reformatting Content to allow its use throughout GNF. You acknowledge that DGI may or may not pre-screen Content, but that DGI and its designees will have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any Content from GNF for any or no reason and with or without notice. If we determine, in our sole discretion and judgment, that any Content does or may violate any of the terms of this Agreement, we further reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to submit further Content; (b) remove and delete your Content; and (c) revoke your right to use GNF. DGI, however, disclaims all responsibility and liability related to DGI’s modifications to or removal of Content or DGI’s failure to modify or remove Content.

You agree that you will not submit or attempt to submit, and we have the right to reject, refuse to accept, remove, or otherwise handle as we deem appropriate, any "Unauthorized Content" which is defined as any Content that is or could be construed as violating any of the terms and conditions of this Agreement, including without limitation Content that:

• violates the terms of this Agreement, Additional Terms, or Rules or any local, state, national or international law, rule or regulation;

• is submitted, posted, displayed, transmitted, exchanged, performed, published, distributed, shared, disseminated, promoted, broadcasted, and/or circulated without the express, prior permission of the Content owner or otherwise in violation of another person’s rights to such Content;

• includes personal information about another person without that person’s prior, express permission;

• violates, misappropriates, or infringes upon the personal or property rights of others, including without limitation, Content that is an invasion of privacy or publicity rights or that is protected by copyright, trademark, or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or right holder;

• is commercial in nature, including without limitation: (i) advertising, promotion, or marketing materials; (ii) junk e-mail, chain letters, duplicative, unsolicited messages or "spamming," "phishing," or pyramid schemes; or (iii) banner ads, pop-ups, pop-unders, interstitials, pre-rolls, or post-rolls. To protect our Members and partners from such advertising or solicitation, we reserve the right to (among other things) restrict the number of e-mails that a Member may send to other Members or users in any twenty-four (24) hour period, to a number that we deem appropriate in our sole discretion. If you violate this Agreement and transmit unsolicited bulk e-mail, instant messages, or any other unsolicited communications through GNF, you acknowledge that you will have caused DGI substantial harm, but that the amount of the harm would be extremely difficult to determine. Accordingly, as a reasonable estimation of such harm, you agree to pay DGI fifty dollars (US $50.00) for each such unsolicited e-mail or other communication that you transmit through GNF in violation of this Agreement or any other applicable terms and conditions.

• causes harm, harasses anyone, or that may prevent, prohibit, inhibit, restrict, or otherwise impair others from using or enjoying GNF;

• tries to gain unauthorized access to GNF, information of other users, or computers connected to GNF though password mining or other means;

• modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of GNF;

• is unlawful, threatening, intimidating, harmful, offensive, harassing, degrading, hateful, abusive, disparaging, defamatory, libelous, violent, threatening, tortuous, obscene, vulgar, sexually suggestive or explicit, pornographic, profane or indecent or hateful on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;

• is fraudulent, false, constitutes or contains false or misleading indications of origin or statements of fact, deceptive, misleading, deceitful, misinforms, or constitutes "bait and switch";

• constitutes, encourages, or solicits a criminal offense or is posted for any illegal purposes or to solicit any illegal act;

• exploits or harms any individual, corporation, or other entity;

• solicits gambling or engage in any gambling activity; or

• contains or embodies software, viruses, worms, timebombs, cancelbots, Trojan horses, worms, bugs, spyware, technology that allows for any automated use of the system, such as scripts, or other harmful, malicious, or potentially harmful component that interrupts, restricts, inhibits, undermines, destroys, or limits the functionality of any computer software, hardware, or telecommunications equipment, or that is designed to perform or performs functions on any software, hardware, or equipment without the owner’s prior, express consent.

If we receive notice of any claim of infringement that satisfies specific legal requirements, such as notice and takedown requirements under U.S. copyright law as set forth below, we may remove Content associated with such claim. We reserve the right to provide information to law enforcement officials, governmental agencies, and pursuant to judicial or regulatory compulsion, to protect the rights, interests, property, or personal safety of DGI, our Members or users, and the public, or to comply with legal, regulatory, audit and compliance obligations. The amount of storage space on GNF per user is limited. Some Content may not be processed due to space constraints or outbound message limitations. You understand, acknowledge, and agree that we assume no responsibility for deletion of Content or any failure to store, receive, or deliver Content in a timely manner or any other matter relating to Content.

You are solely responsible for your interactions with other Members or users to GNF. DGI reserves the right, but has no obligation, to monitor or take action regarding disputes between Members and/or users. In the event of disputes, DGI may in its sole discretion take such action as it deems appropriate, including but not limited to suspending or terminating your account or your ability to access GNF, and removing any User Content.

Except as specifically authorized by DGI, you may not deep-link to GNF for any purpose or access GNF with any robot, spider, web crawler, extraction software, or any other automated process or device to scrape, copy or monitor any portion of the GNF web site or any information, content, or material thereon. You may not link or frame to any pages of this Web site or any content contained therein, whether in whole or in part. DGI reserves all of its statutory and common law rights against any person or entity who violates this paragraph.

 

FEES AND CHARGES

By using GNF, you acknowledge that DGI has the right to charge for DGI’s products and services, including, without limitation, GNF, and to terminate your account should you fail to pay for products or services as required.

 

Charges for DGI products and services are incurred by a Member only if he/she explicitly opts in to such an agreement. One-time payments such as donations and the purchase of virtual items are non-refundable. If a Member believes a charge was incurred without cause, the Member may contact billing@gonenotforgotten.com to resolve the matter. All recurring payments may be cancelled at any time and will terminate at the conclusion of the current billing cycle (monthly, annual or multi-year, as applicable).

 

 

how to send a notice OR COUNTERNOTICE REGARDING claimed Copyright Infringement

DGI respects the intellectual property of others, and we ask our Members and users to do the same. Thus, in your use of and interactions with DGI and the GNF web site, you may not post, modify, distribute or reproduce in any way any Content that is copyrighted material belonging to others, without obtaining their prior written consent. DGI reserves the right, in its discretion, to remove any Content if we believe it may infringe the copyright rights of others, and/or to terminate the accounts of users who we believe to be infringers.

If you are a copyright owner (or the owner’s authorized agent) and have a good-faith belief that Content on GNF infringes one of your copyrights, you may notify us using this procedure. In order for us to process your notice of claimed copyright infringement, it must be sent to the agent designated below and must include the information specified below. When we receive a notice under this procedure, we will investigate material that is claimed to be infringing or to be the subject of infringing activity and take appropriate action based on the results of our investigation.

 

Send your notice of claimed infringement to our designated agent for receiving such notices, as follows:

 

By mail:

Copyright Agent

c/o Data Genesis International, LLC

PO Box 640

Scottsdale, AZ 85252

 

By e-mail: copyright@gonenotforgotten.com

 

DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (SUCH AS REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OR E-MAIL ABUSE) TO THE CONTACT LISTED ABOVE. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.

 

Your notice of claimed infringement must be a written communication provided to the agent designated above that includes substantially the following information:

 

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.

3. Identification of the Content 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 SP to locate the Content.

4. Information reasonably sufficient to permit SP to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

5. A statement that you have a good faith belief that use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

WE CAUTION YOU THAT IF YOU KNOWINGLY MISREPRESENT THAT CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

 

If you are a Member who posted or submitted Content that was removed in response to a notice of claimed infringement, and you believe the Content was removed due to mistake or misidentification, you may request that we replace the Content by sending us a counternotice as follows. You must send the counternotice to our designated agent for receiving notices of claimed infringement, whose contact information is above. Your counternotice must be a written communication sent, and must include substantially the following information:

 

1. Your physical or electronic signature.

2. Identification of the Content that has been removed or to which access has been disabled, and the location at which the Content appeared before it was removed or access to it was disabled.

3. A statement under penalty of perjury that you have a good faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content to be removed or disabled.

4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the U.S., for any judicial district in which DGI may be found, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.

 

When we receive a counternotice that complies with these requirements, we reserve the right, but not the obligation, to restore the Content that was removed after forwarding a copy of the counternotice to the person who sent the notice of claimed infringement, and waiting at least 10 business days. If, during those 10 business days, the person who sent the original notice of claimed infringement notifies us that such person has instituted a suit to seek a court order to restrain the Member who sent the counternotice from infringing activity relating to the Content on GNF, we will not replace the Content. Otherwise, we may repost the Content at our discretion. However, pursuant to this Agreement, we retain the right to remove, disable access to, or not restore Content at any time for any reason without any liability to the posting or submitting Member. In particular, a Member who sends a counternotice pursuant to this Copyright Compliance Policy expressly acknowledges and agrees that we will not be liable to the Member under any circumstances for declining to replace Content.

WE CAUTION YOU THAT IF YOU KNOWINGLY MISREPRESENT THAT CONTENT IS NOT INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

 

We have a policy of terminating the accounts of repeat infringers. A repeat infringer includes any Member who has made multiple submissions of Content for which we receive a notice of claimed infringement under this Agreement. Each Member agrees that, if his/her account is terminated pursuant to this Agreement, the Member will not attempt to establish a new account under any name, real or assumed, and further agrees that if the Member violates this restriction by opening a new account after being terminated pursuant to this Agreement, the Member will indemnify and hold us harmless for any and all liability that we may incur.

 

 

Disputes

DISCLAIMER AND LIMITATIONS OF LIABILITY

THE GNF WEBSITE AND ALL CONTENT (DEFINED HEREIN), FEATURES, MATERIALS, SERVICES, PRODUCTS, SOFTWARE,FUNCTIONS AND OPERATIONS MADE AVAILABLE ON, ACCESSED THROUGH OR SENT FROM GNF (COLLECTIVELY THE "DGI ITEMS") ARE MADE AVAILABLE ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE PROVIDE YOU NO GUARANTY OR ASSURANCE ABOUT: (I) THE DGI ITEMS; OR (II) SECURITY ASSOCIATED WITH THE TRANSMISSION OF PERSONAL INFORMATION THROUGH GNF.

DGI DOES NOT WARRANT THAT THE DGI ITEMS WILL BE UNINTERRUPTED OR ERROR-FREE, FUNCTION OR PERFORM IN ANY PARTICULAR MANNER, THAT DEFECTS WILL BE CORRECTED, OR THAT GNF OR THE SERVERS THAT MAKE GNF AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

IF YOU ARE DISSATISFIED WITH THE DGI ITEMS, THIS AGREEMENT OR ANY RULES OR ADDITIONAL TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE DGI ITEMS.

DGI DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE DGI ITEMS IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, DGI SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT, BY USING ANY OF THE DGI ITEMS, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE DGI ITEMS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM YOUR USE OF THE DGI ITEMS. FURTHER, DGI DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.

Without limiting the foregoing, DGI, its successors and assigns, and their respective officers, directors, employees, agents, representatives, licensors, licensees, operational service providers, Advertisers, and suppliers (collectively, the "Released Parties") are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the DGI Items. The Released Parties' are not responsible or liable for any problem, technical malfunction, damage to or failure of the Internet or any telecommunications equipment, network, or line, computer online system, server or provider, computer or other equipment, e-mail, media player, or other software or hardware - whether resulting from, without limitation: any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure, technical problems, traffic congestion on the Internet, or at any web site or combination thereof, or any other reason. The Released Parties are not responsible or liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond the Released Parties’ reasonable control, including without limitation other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heating, lighting, or air conditioning. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the DGI Items, including, without limitation, Content and other materials associated with your use of the DGI Items.

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY LOSS OR DAMAGE OF ANY KIND (INCLUDING WITHOUT LIMITATION, FOR ANY DIRECT OR INDIRECT, COMPENSATORY, ECONOMIC, CONSEQUENTIAL, INCIDENTAL, DGIECIAL, GENERAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF REVENUE OR INCOME, BUSINESS INTERRUPTION, CORRUPTION OF DATA, PERSONAL INJURY, DEATH, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO: (I) THE DGI ITEMS;(II) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE DGI ITEMS; (III) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY DGI OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE DGI ITEMS; (IV) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (V) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE DGI ITEMS; AND (VI) THE CONDUCT, ACTIONS, OR INACTIONS OF MEMBERS AND USERS, EVEN IF FORESEEABLE OR IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE DGI ITEMS). IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR DAMAGES, SO SOME OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE RELEASED PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).

YOU RECOGNIZE AND CONFIRM THAT, IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES THAT ARISE OUT OF THE RELEASED 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 THE DGI ITEMS OR ANY OTHER WEB SITE OR CONTENT OWNED OR CONTROLLED BY THE RELEASED PARTIES AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION, OR EXPLOITATION THEREOF OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.

By accessing or using the GNF website, 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 California Civil Code Section 1542, which says: "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."

Notwithstanding any claim that a sole or exclusive remedy provided in this Agreement may or does fail of its essential purpose, you specifically acknowledge and agree that your sole and exclusive remedy for any loss or damage will be to have DGI, upon written notice from you to us, attempt to repair, correct, or replace any deficient goods or services provided by DGI under this Agreement and, if repair, correction, or replacement is not reasonably commercially practicable for DGI, to refund any monies actually paid by you to DGI for the goods or services involved and to terminate and discontinue your use of the DGI Items. You further understand and acknowledge the capacity of the DGI Items, in the aggregate and for each user, is limited. Consequently, some messages and transmissions may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that DGI assumes no liability, responsibility, or obligation to transmit, process, store, receive, or deliver transactions or Content (defined below) or for any failure or delay associated with any Content and you are hereby expressly advised not to rely upon the timeliness or performance of GNF for any transactions or Content.

 

INDEMNIFICATION

You agree to indemnify, defend, and hold the Released Parties harmless from and against any and all claims, actions, losses, expenses, damages, and costs (including reasonable attorneys' fees), resulting from: (i) your use of the DGI Items; (ii) any breach or violation of this Agreement or any law, rule, or regulation; (iii) the posting, submission, display, transmission, exchange, performance, publication, distribution, sharing, dissemination, promotion, broadcast, and/or circulation of your Content or any other Content; (v) the theft or misappropriation of your e-mail address or password; (vi) disclosure of your e-mail address or password, or (vii) your authorization of anyone else to use your e-mail address or password.

DGI reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with DGI in the defense of any such claim, action, settlement, or compromise negotiations, as requested by DGI. In no event will you settle any claim or action without DGI’s prior written approval.

reporting Violations

Please report any violations of this Agreement, including objectionable Content or behavior, to support@gonenotforgotten.com. Please state the reasons for your concern and provide a link to the Content or, if appropriate, the behavior in question. Upon receiving such a report of a possible violation, DGI in its sole discretion may investigate the matter and take such action as DGI determines to be appropriate.

No Waiver

DGI' failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. This means that DGI may at any time choose to take an action that it is permitted or legally entitled to take, even if DGI has not taken such an action in the past, in the same or a similar situation.

AGREEMENT UPDATE

This Agreement updated May 12, 2009