Last Updated on April 14, 2009

MustExist Terms of Use

  1. Terms of Use; Acceptance.  Welcome, and thank you for your interest in MustExist, Inc. (referred to as “we,” “our,” “us,” or "MustExist").  MustExist owns and operates web site properties located at www.mustexist.com and elsewhere on the Internet (the “MustExist Site”) and also provides other network based services, including public APIs, embeddable applications, or widgets, that allow visitors to the MustExist Site and other visitors and users (each, a “User” and collectively, the “Users”) to publish and browse a variety of information (such services, together with the MustExist Site, referred to collectively as the "MustExist Service").
 

    PLEASE READ THE FOLLOWING TERMS, THE MUSTEXIST PRIVACY POLICY, ANY OTHER RULES AND GUIDELINES THAT MAY BE COMMUNICATED TO YOU THROUGH THE MUSTEXIST SERVICE FROM TIME TO TIME, AND ANY FUTURE MODIFICATIONS TO THE TERMS AND GUIDELINES (COLLECTIVELY, THE “TERMS”) CAREFULLY, AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND MUSTEXIST.  BY ACCESSING, BROWSING, AND/OR OTHERWISE USING THE MUSTEXIST SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS.  IF YOU DO NOT AGREE TO THESE TERMS, THEN PLEASE DO NOT USE THE MUSTEXIST SERVICE. 

  1. Eligibility; MustExist Service Access.
    1. You must be 18 to use the MustExist Service, and by using the MustExist Service, you represent that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, and to abide by and comply with these Terms.  In any case, you affirm that you are over the age of 13, as the MustExist Service is not intended for children under the age of 13.  IF YOU ARE UNDER 13 YEARS OF AGE OR HAVE BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE MUSTEXIST SERVICE, YOU ARE PROHIBITED FROM USING THE MUSTEXIST SERVICE.
    2. If you are using the MustExist Service on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.
    3. MustExist grants you permission to access and use the MustExist Service as set forth in these Terms, provided that: (i) you use the MustExist Service solely for your personal, private, noncommercial use; (ii) you do not reproduce or distribute any part of the MustExist Service, including any materials obtained from the MustExist Service, in any medium, other than through the intended features of the MustExist Service, without MustExist’s prior written authorization, or as authorized in these Terms; (iii) you do not alter or modify any part of the MustExist Service other than as may be reasonably necessary to use the MustExist Service for its intended purposes; and (iv) you do not engage in any of the prohibited uses described below.
  2. Privacy.  MustExist takes your privacy very seriously.  The MustExist Privacy Policy is hereby incorporated into these Terms by reference.  Please read the policy carefully for information relating to MustExist’s collection, use, and disclosure of your personal information.
  3. User Submissions 
    1. General.  The MustExist Service provides features for you and other Users to submit, post, and share content with other Users, including without limitation text, chat, commentary, graphics, audiovisual content, or any other content submitted by you and other users through the MustExist Service (“User Submissions”), and provides for the hosting, sharing, reproduction, distribution, public performance, public display, and creation of derivative works of such User Submissions.  User Submissions are displayed for entertainment and informational purposes only and are not controlled by MustExist.  While MustExist provides tools to aid you in controlling access by others to your User Submissions, MustExist cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you submit to the MustExist Service.  You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated, and that MustExist does not monitor, review, support, endorse or otherwise warrant User Submissions in any way.  This means that you, and not MustExist, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the MustExist Service. 
    2. No Obligation to Publish.  MustExist makes no representations that it will publish or make available on the MustExist Service any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the MustExist Service, or to remove any User Submission at any time with or without notice.  Without limiting the generality of the preceding sentence, MustExist complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see “Digital Millennium Copyright Act” below). 
    3. License Grant by You.  You retain all of your ownership rights in original aspects your User Submissions, subject to the following license grant, including MustExist’s ownership rights in any derivative works based on your User Submissions.  By submitting User Submissions to MustExist, you hereby grant MustExist and its Users, affiliates, sublicensees, partners, designees, and assignees of the MustExist Service (collectively, the “MustExist Licensees”) a worldwide, non-exclusive, no-charge, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, to use, reproduce, distribute, edit, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the MustExist Service and MustExist’s (and its successor’s) business, including, without limitation, for marketing, promoting, and redistributing part or all of the MustExist Service (including User Submissions) and derivative works thereof, in any media format and through any media channel now known or hereafter discovered or developed, including syndicating such User Submissions and derivatives thereof to third party web sites. In order to maximize the utility of the MustExist service, many User Submissions may need to be edited, and you agree that the license you grant to MustExist above includes the right publish and otherwise utilize modified versions of your User Submissions, without identifying the fact that the particular submission has been modified. 
    4. Additional Rights.  You grant the MustExist Licensees the right to use your name and/or likeness and/or any name and/or likeness that you submit in connection with your User Submissions if they should choose, without compensation or need for your prior approval, or to exercise any of the rights licensed by you hereunder, in connection with a fictional name or persona or without any attribution at all.  You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.
 
    1. Feedback.  If you provide MustExist with any comments, bug reports, feedback, or modifications proposed or suggested by you to the MustExist Service (“Feedback”), regardless of the format or mechanism you utilize to submit any such Feedback, MustExist shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the MustExist Service and the right to assign, license or otherwise use the MustExist Service.  You hereby grant MustExist a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose. 
    2. User Submissions Representations and Warranties.  You are solely responsible for your own User Submissions and the consequences of posting or publishing them.  In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize MustExist to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by MustExist and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, MustExist’s or any MustExist Licensee’s use of such User Submissions pursuant to these Terms, and MustExist’s or any MustExist Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) violate any applicable law or regulation; or (d) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms.
  1. Prohibited Conduct – BY USING THE MUSTEXIST SERVICE YOU PROMISE NOT TO:
    1. Upload copyrighted material not your own or have the legal right to distribute, display and otherwise make available to others - such as TV shows, movies, or music videos;
    2. Harass, threaten, or defraud Users of the MustExist Service, or others;
    3. Upload or send to other Users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
    4. Make unsolicited offers, advertisements, proposals, or send junk mail to Users of the MustExist Service, or others;
    5. Collect or harvest any personally identifiable information, including without limitation usernames, screen names, or other account identifiers issued by MustExist or any third party service, from the MustExist Service; 
    6. Impersonate another person or attribute a User Submission to another without that person's permission;
    7. Share passwords issued by MustExist or any third party service with anyone or encourage any other User to do so;
    8. Misrepresent the source, identity, or content of information transmitted via the MustExist Service; or
    9. Use the MustExist Service for any illegal purpose.
  2. Individual Features and Services.  When using the MustExist Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the "Guidelines").  All such Guidelines are hereby incorporated by reference into the Terms.
  3. Modifications.  MustExist reserves the right, at its discretion, to change, modify, add, or remove portions of the Terms at any time.  Please review the Terms periodically for changes.  Your continued use of the MustExist Service after the posting of changes constitutes your binding acceptance of such changes.  For any material changes to these Terms, such amended terms will automatically be effective upon the earlier of (i) your continued use of the MustExist Service with actual knowledge of such a change, or (ii) 30 days after such modified terms are initially published through the MustExist Service.
  4. Prohibited Uses.
    1. Territory.  Access to the MustExist Service from territories where its contents are illegal is prohibited.  The MustExist Service is designed for customers in the United States.  Those who choose to access the MustExist Service from other locations do at their own initiative and are responsible for compliance with all local rules including, without limitation, rules about the internet, data, email, or privacy. 
    2. General Prohibitions.  Any use of any of the MustExist Service other than for private, personal, non-commercial use is strictly prohibited.  You may not offer goods for sale or use the MustExist Service for any commercial purpose without our prior written consent.  As a condition of your use of the MustExist Service, you will not use the MustExist Service for any purpose that is unlawful or prohibited by these Terms.  You may not use the MustExist Service in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party's use and enjoyment of the MustExist Service.  You may not attempt to gain unauthorized access to the MustExist Service, or any part of it, other accounts, computer systems or networks connected to the MustExist Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the MustExist Service or any activities conducted on the MustExist Service.  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the MustExist Service.  You agree neither to modify the MustExist Service in any manner or form, nor to use modified versions of the MustExist Service, including (without limitation) for the purpose of obtaining unauthorized access to the MustExist Service or any third party service. 
    3. No Automated Access.  The MustExist Service may contain robot exclusion headers.  You agree that you will not use any robot, spider, scraper, or any other automated means to access the MustExist Service for any purpose beyond reasonable use of the intended features of the MustExist Service, without our express written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the MustExist Service.
    4. Reporting Abuse.  If you have reason to believe that any User is in violation of any of the Terms, or that any other inappropriate activity is being conducted on the MustExist Service, please report that conduct to "abuse at mustexist dot com" at any time.
  5. Termination.
    1. By MustExist.  This agreement and all rights and licenses granted to you hereunder will terminate immediately upon any breach of the Terms by you.  You agree that MustExist, in its sole discretion and for any or no reason, may terminate your right to access and use the MustExist Service and remove and discard all or any part of any content uploaded by you, at any time.  MustExist may also in its sole discretion and at any time discontinue providing access to the MustExist Service, or any part thereof, with or without notice.  You agree that any termination of your access to the MustExist Service may be affected without prior notice, and you agree that MustExist will not be liable to you or any third–party for any such termination.  MustExist does not permit copyright infringing activities on the MustExist Service and reserves the right to terminate access to the MustExist Service and remove all content submitted by any persons who are found to be repeat infringers.  Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the MustExist Service may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies MustExist may have at law or in equity. 
    2. By You.  You may terminate this Agreement and your right to access and use the MustExist Service at any time and for any reason or no reason, by contacting MustExist customer support. 
  6. Ownership; Proprietary Rights.  The MustExist Service is owned and operated by MustExist.  The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the MustExist Service provided by MustExist ("Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  Except for any content uploaded by you, all Materials contained on the MustExist Service are the copyrighted property of MustExist or its subsidiaries or affiliated companies and/or third–party licensors.  All trademarks, service marks, and trade names are proprietary to MustExist or its affiliates and/or third–party licensors.  Except as expressly authorized by MustExist, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
  7. Third–Party Sites, Products and Services; Links.
    1. Links.  The MustExist Service may include links or features which facilitate your use of to other web sites or services provided by third parties, solely as a convenience to Users ("Linked Sites").  MustExist does not endorse any such Linked Sites or the information, material, products or services contained on other linked sites or accessible through other Linked Sites.  Furthermore, MustExist makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites.  ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
    2. Advertisers.  Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the MustExist Service are solely between you and such advertiser.  YOU AGREE THAT MUSTEXIST WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE MUSTEXIST SERVICE. 
    3. Integration with Third Party Features.  To take advantage of certain features of the MustExist Service, you will need to register for an account from a third party service, and you agree that you are solely responsible for the activity that occurs on your account with any third party service, and that it is your sole responsibility to keep your account credentials secure.  You also acknowledge that failure to exit from your accounts at third-party services at the end of each session may result in unauthorized use of your accounts at these third-party services.  While MustExist may provide you with features that enable or facilitate your use of third party web sites and services (including, without limitation, allowing you to syndicate your User Submissions to unaffiliated social networking sites through the use of APIs made available fur such use), you acknowledge and understand that your use of any web site, service, or software offered by any third party, is likely governed by terms offered by that third party.  When you leave the MustExist Service or otherwise take advantage of any such third party service, these Terms no longer govern.  You should review applicable terms and policies, including any relevant privacy policies, associated with any third party web sites, software, or services you utilize.
  8. Third Party Fees.  We may make available services through which you can access certain features of the MustExist Service through a mobile device, including without limitation receiving messages on your mobile device via short message service ("SMS Service") or via wireless internet ("WAP Services").  If you access or utilize SMS or WAP Services associated with the MustExist Service, you thereby agree to receive SMS or WAP Service at the address you provide for such purposes, and you represent and warrant that you are the owner of the account and authorized to approve all applicable charges.  YOU UNDERSTAND THAT YOUR WIRELESS CARRIER CHARGES FOR ACCESS TO ITS NETWORK, AND THAT BY USING SMS OR WAP SERVICES, YOU MAY INCUR CHARGES, INCLUDING STANDARD RATES FOR DATA ACCESS AND MESSAGING, AND / OR ANY TAXES THAT MAY BE ASSOCIATED WITH SUCH SERVICES.  YOU ARE SOLELY RESPONSIBLE FOR ANY SUCH FEES, CHARGES, AND TAXES.  You may opt-out of SMS Services by notifying MustExist customer support.  You represent that you are the owner or authorized user of the wireless device you use to sign up for the SMS or WAP Service, and that you are authorized to approve the applicable charges.  To use the SMS or WAP Service, you must reside in the United States.
  9. Notice.  Except as explicitly stated otherwise, legal notices will be served on MustExist via MustExist customer support, or to you by posting to the MustExist Site.  Notice will be deemed given 24 hours after publication to the MustExist Site or sending of email, unless the sending party is notified that the email address is invalid.
  10. User Disagreements.  You alone are responsible for your involvement with other Users.  MustExist reserves the right, but has no obligation, to monitor disagreements between you and other Users.  If you have a dispute with one or more Users, you irrevocably and forever release MustExist (and MustExist's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.  IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE 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 I KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
  11. Disclaimers; No Warranties. 
    1. THE MUSTEXIST SERVICE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MUSTEXIST SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MUSTEXIST, ITS SUPPLIERS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON–INFRINGEMENT OF PROPRIETARY RIGHTS. 
    2. MUSTEXIST, ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE MUSTEXIST SERVICE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MUSTEXIST SERVICE WILL BE UNINTERRUPTED OR ERROR–FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MUSTEXIST SERVICE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MUSTEXIST SERVICE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 
    3. MUSTEXIST, ITS SUPPLIERS AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE MUSTEXIST SERVICE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MUSTEXIST SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.  MUSTEXIST, ITS SUPPLIERS, AND PARTNERS DO NOT ENDORSE ANY PRODUCT, SERVICE, OR THIRD PARTY THAT MAY BE IDENTIFIED, ADVERTISED, OR OTHERWISE MADE KNOWN THROUGH THE MUSTEXIST SERVICE.  YOU (AND NOT MUSTEXIST NOR ITS SUPPLIERS AND PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION OF ANY EQUIPMENT OR OTHER PROPERTY THAT IS DAMAGEDAS A RESULT OF RELIANCE ON THE MUSTEXIST SERVICE.  YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE MUSTEXIST SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR OTHER EQUIPMENT, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
    4. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. 
  12. Limitation of Liability and Damages. 
    1. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL MUSTEXIST OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD–PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OR RELATED TO THE MUSTEXIST SERVICE, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE MATERIALS ON THE MUSTEXIST SERVICE, OR ANY OTHER INTERACTIONS WITH MUSTEXIST, EVEN IF MUSTEXIST OR A MUSTEXIST AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  IN SUCH CASES, MUSTEXIST'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
    2. IN NO EVENT WILL MUSTEXIST OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD–PARTY PARTNERS OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE MUSTEXIST SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE MUSTEXIST SERVICE DURING THE 12 MONTHS PRECEDING YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
    3. THESE LIMITATIONS WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN MUSTEXIST AND RECEIVED THROUGH OR ADVERTISED ON THE MUSTEXIST SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE MUSTEXIST SERVICE, INCLUDING THROUGH ANY LINKS OR REFERENCES MADE AVAILABLE ON THIRD PARTY SITES AS A RESULT OF SYNDICATION BY MUSTEXIST OR MUSTEXIST USERS OF ANY CONTENT OR DATA, INCLUDING USER SUBMISSIONS, MADE AVAILABLE ON THE MUSTEXIST SERVICE. 
  13. Indemnification; Hold Harmless.  You agree to indemnify and hold MustExist, its affiliated companies (including any parent entities), and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your User Submissions, use or misuse of the MustExist Service or any third party service you use in connection with the MustExist Service, violation of these Terms or the terms which govern any third party service you use in connection with the MustExist Service, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.  MustExist reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. 
  14. Waiver.  A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision.  The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party's right at a later time to enforce the same.  A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms. 
  15. Applicable Laws and Dispute Resolution.  We operate MustExist from our offices in California, and we make no representations that information and materials included in the MustExist Service are appropriate or available for use in other locations.  Access to the MustExist Service from any territory where the content is illegal is prohibited.   

    If a dispute arises between you and MustExist, you and MustExist agree that we will resolve any claim that arises out of or relates to this Agreement or the MustExist Service (a "Claim") solely in accordance with the provisions set forth below or as we and you otherwise agree in writing.   

    1. Law and Forum for Disputes.  This Agreement shall be governed in all respects by the laws of the State of California without reference to conflict of law provisions.  You agree that any claim or dispute you may have against MustExist shall be exclusively resolved by a court located in the City and County of Santa Clara, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below.  You agree to submit to the personal jurisdiction of the courts located within the City and County of Santa Clara, California for the purpose of litigating all such claims or disputes.   
    2. Time for Claims.  YOU AND MUSTEXIST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE MUSTEXIST SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 
    3. Arbitration Option.  For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration.  In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties.  The ADR provider and the parties shall comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 
    4. Improperly Filed Claims.  All claims you bring against MustExist must be resolved in accordance with this Section, and any claims filed or brought contrary to the Section shall be considered improperly filed.  Should you file a claim contrary to this Section, MustExist may recover reasonable attorneys' fees and costs up to $1000, provided that MustExist has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
  1. Digital Millennium Copyright Act Compliance.  If you are a copyright owner or an agent thereof, and you believe that any content hosted on the MustExist Service infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

    (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

    (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the MustExist Service are covered by a single notification, a representative list of such works at the MustExist Service;

    (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MustExist to locate the material;

    (iv) Information reasonably sufficient to permit MustExist to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

    (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

    (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 

    MustExist's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Copyright Agent at "copyright at mustexist dot com".  For clarity, only DMCA notices should go to the MustExist Designated Copyright Agent.  Any other feedback, comments, requests for technical support or other communications should be directed to MustExist customer support.  You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. 

  1. Miscellaneous. 
    1. Severability.  If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
    2. Assignment.  These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be transferred or assigned by MustExist without restriction, including by operation of law or otherwise, or in connection with any change of control, sale of assets, reorganization, or any other transaction.
    3. Survival.  Sections 4, 7, 9, 10, and 12 through 21will survive any termination of these Terms. 
    4. Headings.  The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
    5. Entire Agreement.  This is the entire agreement between you and MustExist relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by MustExist as set forth in Section 7 above.
    6. Disclosures.  The services hereunder are offered by MustExist, Inc., available at MustExist customer support page. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.