Effective Date: December 11th, 2015
This website, computing application, website, and the data, services, information, tools, functionality, updates and similar materials delivered or provided thereby (collectively, the “Service”) are supplied by Railroad Project, Inc. (“Railroad”, “us” or “we”) subject to your agreement to and compliance with the conditions set forth in this Terms and Conditions Agreement (the “Agreement”). By creating an account to use the Service or otherwise entering into this Agreement, you are creating a binding contract with Railroad.
Railroad may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions. Your use of the Service following an update to this Agreement (or other acceptance method) is considered acceptance of the updated Agreement. If you do not accept the changes, you must stop using the Service.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, Railroad hereby grants you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to use and access the Service only on your computing device for personal use. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
IMPORTANT NOTICES; AVAILABILITY
While we make reasonable efforts to ensure that the Service remains available at all times, we do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that users will be able to access or use the Service, or its features, at all times.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
The Service may contain typographical errors or inaccuracies, including relating to price, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
RULES OF CONDUCT
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
You agree not to distribute, upload, transmit through or make available or otherwise publish through the Service any suggestions, information, ideas, comments, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (“Content”) that:
You must keep your information needed to login to the Service confidential and secure. We are not responsible for any unauthorized access to your account or profile by others.
You further agree that you will not do any of the following:
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
Notwithstanding the foregoing rules of conduct, Railroad’s unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
CONTENT SUBMITTED OR MADE AVAILABLE TO RAILROAD
You are under no obligation to submit anything to us or to make any Content available through the Service. Unless otherwise noted, we will not claim ownership of any Content. If, however, you choose to submit any Content to the Service, or otherwise make available any Content through the Service, you hereby grant Railroad a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels, as well as to commercially use the rights of publicity, persona, image and name of the individuals depicted in such Content within the Service and incident to the Service.
In addition, if you submit any Content to the Service or otherwise make available any Content through the Service in connection with a “Featured Content” area of the Service, or other area indicated as a public area of the Service, you hereby grant Railroad a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels, as well as to commercially use the rights of publicity, persona, image and name of the individuals depicted in such Content, for any commercial or non-commercial purpose.
By submitting any Content or Submissions to Railroad, you hereby agree, warrant and represent that: (a) you are authorized to submit the Content or Submission to us for republication through the Service, and you have secured any necessary licenses or permissions from rights owners relating to the Content or Submission, including but not limited to copyright licenses or licenses to rights of publicity; (b) the Content and Submissions do not contain proprietary or confidential information; (c) the provision of the Content and Submissions, and their use by Railroad in connection with the Service, is not and will not be a violation of any third-party’s rights; (d) all such Submissions and Content are accurate and true; (e) Railroad is not under any confidentiality obligation relating to the Content or Submissions; (f) Railroad shall be entitled to use or disclose the Content or Submissions in any way; (g) you are not entitled to compensation in exchange for the Submissions or Content, and (h) are not entitled to attribution relating to the Submissions or Content.
You acknowledge that Railroad is under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove and or discard any such material.
CONTENT SHARED THROUGH THE SERVICE
The Service may make it possible for you to choose to share certain information with the public or other users of the Service. There are a number of ways in which you can control how much information is shared, and Railroad will make efforts to comply with your instructions from the options provided to you by Railroad. You understand that by designating information to be shared through the Service, you may be revealing information that you choose to share. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that Railroad shall not be held responsible, and Railroad shall be released and held harmless by you from any liability or damages arising out of such conduct.
RAILROAD’S INTELLECTUAL PROPERTY
Railroad’s graphics, logos, names, designs, page headers, button icons, scripts, and service names are trademarks, trade names and/or trade dress of Railroad. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are the property of Railroad or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain the sole and exclusive property of Railroad and/or its licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
ENFORCEMENT AND TERMINATION OF SERVICES
Railroad reserves the right to deny all or some portion of the Service to any user, in Railroad’s sole discretion, at any time.
Without limiting the foregoing or assuming additional legal obligations, Railroad has a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to Railroad related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
LINKS AND THIRD-PARTY CONTENT
The Service may contain links. Such links are provided for informational purposes only, and Railroad does not endorse any website or services through the provision of such a link.
The Service may contain articles, text, imagery, video, audio, data, information and other similar materials originating from third-parties. Railroad does not endorse any third party content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted or otherwise edited by Railroad.
DISCLAIMERS AND LIMITATION ON LIABILITY
YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. RAILROAD, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM RAILROAD SHALL CREATE ANY WARRANTY.
USE OF THE SERVICE IS AT YOUR SOLE RISK. RAILROAD DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL RAILROAD OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIER (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF RAILROAD AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforced, then you agree that neither Railroad nor any of the Related Parties shall be liable for (1) any damages in excess of $500.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that Railroad causes you intentionally and knowingly in violation of this Agreement or applicable law that cannot be disclaimed in this Agreement.
You agree to defend, indemnify and hold Railroad and its suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to
reasonable attorney's fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Service, (b) your use of the Service,
(c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of Service.
DISPUTES, GOVERNING LAW AND JURISDICTION
You agree that any claim or dispute arising out of or relating in any way to your use of the Service or any service provided by Railroad, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: 1830 Meridian Ave., Apt. 704 Miami Beach, FL 33139.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You and Railroad agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Railroad agree that parties have each waived any right to a jury trial.
Notwithstanding the foregoing, you agree that Railroad may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Services, or to Railroad, may only be brought by you in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
POLICIES FOR CHILDREN
The Service is not directed to individuals under the age of 13. You must be over the age of 13 to use the Service. In the event that Railroad discovers that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information in accordance with the Children's Online Privacy Protection Act. Please see the Federal Trade Commission's website (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your Internet Service Provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Railroad as a result of this Agreement or your use of the Service.
Assignment. Railroad may assign its rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Railroad’s prior written consent, and any unauthorized assignment by you shall be null and void.
Attorneys’ Fees. In the event any litigation is brought by Railroad in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: email@example.com.
Equitable Remedies. You hereby agree that Railroad would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and Railroad with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
ADDITIONAL TERMS APPLICABLE TO iOS-POWERED SOFTWARE
In the event that you use the Service through software operating on iOS, the following additional terms apply:
If you believe in good faith that any material posted on or through our Service infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Railroad Project, Inc.
1830 Meridian Ave., Apt. 704
Miami Beach, FL 33139
COMPLAINT POLICY (INCLUDING TRADEMARK AND PRIVACY)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to firstname.lastname@example.org, containing the following information:
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.