Date: January 1st, 2010
OF USE, AS AMENDED FROM TIME TO TIME ("Terms"), ARE A BINDING CONTRACT BETWEEN
VISITORDAY, LLC. ("VISITORDAY" or "we") AND YOU ("you"). YOU MUST READ AND AGREE
WEBSITE (the "Site") OR ANY APPLICATIONS, FEATURES OR FUNCTIONALITY AVAILABLE ON
OR THROUGH THE SITE (COLLECTIVELY, THE “SERVICE”). BY USING THE SERVICE, YOU
AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE
OF SERVICE; MINIMUM AGE REQUIREMENT
of Service. VisitorDay offers an array of services and interactive tools for
publishing content on the Internet.
Requirement. You must be at least 14 to use the Service.
MODIFICATIONS TO TERMS
and any other agreement that is incorporated by reference into these Terms. We
will provide notice to you of any material change in the Terms by posting notice
to the Site and sending you an email to your VisitorDay email account or to the
non- VisitorDay email address that we have on record for you. Your continued use
of the Service 30 days after our notice to you of a change in the Terms will
mean that you have agreed to be bound by the amended Terms.
Obligation to Stay Current. It is critical that you keep your email contact
information correct and updated with VisitorDay at all times. In addition, we
encourage you to check back regularly to review these Terms at least once every
MODIFICATIONS TO SERVICE.
We reserve the right to modify or discontinue,
and restrict or block access to, the Service without notice to you. VisitorDay
reserves the right to modify the payment program, including without limitation
the percentage share or payment period at any time in its sole discretion.
We may modify or remove any Content from
the Service at any time without notice to you, including removal of Content that
we believe to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable. We are not liable for any such
modification, suspension, discontinuance or removal, and any such action by us
will not affect VisitorDay's license to your Content as stated in Section 5
CONTENT ON THE SERVICE; REPRESENTATIONS AND WARRANTIES
Protected by Intellectual Property Rights. Any content available through the
Service, including games, applications, software, text, audio, video, pictures,
graphics, music, sound clips, images, likenesses, personal information and other
works of authorship (collectively, "Content") is protected by the intellectual
property rights of VisitorDay or its licensors.
Warranties Regarding Your Content. By displaying or publishing ("posting") any
Content on the Service, you warrant and represent the following:
- you own all
rights in your Content or, alternatively, you have sufficient rights in your
Content to grant to VisitorDay the rights described in these Terms;
- you will
pay all license fees, clearance fees, and other financial obligations of any
kind, arising from any use of your Content;
you are the
individual pictured, depicted, and/or heard in your Content or you have obtained
permission from each person (including consent from parents or guardians for
anyone under the age of eighteen (18)) who appears and/or is heard in your
Content to grant the rights to VisitorDay described in these Terms; and
Content is not defamatory, does not infringe the intellectual property rights,
privacy, rights to publicity or any other legal or moral rights of any third
Establishing an Account to Post Content. To post Content on the Site, you must
first complete the Site registration process to create an account with a user
name and password (the "Account"). You may not share your password with anyone
unless you are a minor, in which case you may share your password with your
parents or other legal guardians. You must always provide accurate current and
complete information to VisitorDay for the Service. You must update such
information in a timely manner to maintain its accuracy and completeness. Any
use of the Service through your Account will be deemed as being used by you.
VisitorDay is entitled to rely on the contact and other information that is
supplied to us through your Account. Your Account is non-transferable and
OF RIGHTS; LICENSE RIGHTS; USER SUBMISSIONS
of Your Content. You retain ownership of your rights in any Content you post to
the Service, subject to the non-exclusive rights that you grant to us as
described in these Terms.
License to VisitorDay.
- Subject to
your right to terminate your license to us as described in Section 5(C), you
hereby grant VisitorDay an irrevocable, perpetual, worldwide, royalty-free,
freely transferable, freely sub-licensable (through unlimited levels of
sublicense), non-exclusive license to use, reproduce, modify, transmit,
distribute, publicly perform and display (including in each case by means of a
digital audio and video transmission), advertise in, on, and around, and create
derivative works of the Content you submit or make available for inclusion on or
through the Service, and to incorporate such Content into other works in any
form, media, or technology now known or later developed.
- You also
hereby waive any moral rights you may have under the laws of any jurisdiction in
Content you submit or make available on or through the Service. We may (but are
not obligated to) display your Content, including your username and your actual
name (according to the preferences you select).
- Your Right
to Terminate the License. For Content consisting of photos, graphics, audio or
video (but not, for clarity, any Content solely in the form of text) that you
have submitted or made available for inclusion on or through the Service, you
may remove or modify such Content from the Service at any time. Your removal of
such Content from the Service will terminate our license to such Content. But if
prior to such removal or modification, VisitorDay has distributed, or developed
specific plans to distribute, any electronic, printed, or other materials
containing such Content (e.g., in advertising, promotion or otherwise), then
VisitorDay has a limited right to continue to distribute those materials. If you
want VisitorDay to stop distributing the materials, simply send us written
notice to stop distributing such materials, in which event we will stop
distributing the materials within 30 days. Your notice must be signed by you,
include your telephone number and email address, and be sent by first class
mail, postage prepaid, to VisitorDay, LLC., 26111 Brush Ave. Suite 210, Cleveland,
OH 44132, Attn: Copyright Agent. In addition, the notice must clearly identify the
Content at issue, describe the specific use of the Content you wish to end, and
contain statements that you own or have an exclusive right to the Content and
that all the information in the notice is true and correct. The 30 day period
for VisitorDay to stop distributing your Content begins only once VisitorDay has
received a notice complying with the requirements of this Section 5(C).
Contact Submissions. When you submit ideas, suggestions, documents, or proposals
(collectively, "Submissions") to VisitorDay through our “Contact Us” web page
located at http://www. VisitorDay.com/ContactUs.aspx or otherwise, you
represent, warrant, and agree that: (i) your Submissions do not include
confidential or proprietary information; (ii) if we so choose, VisitorDay may
use and disclose your Submissions in any way; and (iii) VisitorDay has no
obligation to pay or reimburse you for your Submissions or our use of your
- While we
provide services, you remain the owner and registrant of each domain name for
which you elect to use our Service, with all attendant rights and
responsibilities. We have no ownership, license, or other interest in the domain
name. You have full control over how you use your domain, whether by requesting
our services or otherwise. This means that you solely accept and assume all
liability for any harm caused by any wrongful acts regarding or use of domain(s)
that are using the Service.
CONTENT. You must not post to the Service any Content that, as reasonably
determined by VisitorDay, is or appears to be the following:
misleading, harmful, threatening, abusive, harassing, defamatory, vulgar,
obscene, invasive to another person's privacy or protected data, hateful, or
racially or otherwise objectionable;
upon a third party's intellectual property rights, including any patent,
trademark, trade secret, copyright, right of publicity, including any Content
that is the subject of any claim of infringement;
- of a type
that you do not have a right to transmit under any law or under contractual or
fiduciary relationships, such as proprietary and confidential information;
unsolicited, undisclosed or unauthorized advertising;
viruses or any other computer code, files, or programs designed to interrupt,
destroy, or limit the functionality of any computer software or hardware or
- data or
information obtained through access that was not authorized by the owner, or
that you are not authorized to post; or
violation of any applicable local, state, national or international law
(including export laws).
CONDUCT; LIQUIDATED DAMAGES FOR SPAM AND OTHER MISUSE.
Conduct. You must not do, or attempt to do, any of the following, as reasonably
determined by VisitorDay, subject to applicable law:
- access or
use the Service in any way that is not in compliance with any applicable local,
state, national or international law (including export laws), contracts,
intellectual property rights or constitutes the commission of a tort, or for any
purpose that is harmful or unintended (by us), or other than in full compliance
with these Terms;
tamper with, or use services or areas of the Service that you are not authorized
information on or obtained from the Service;
- tamper with
postings, registration information, profiles, submissions or Content belonging
to VisitorDay or other users of VisitorDay;
- use any
robot, spider, scraper or other automated means or interface not provided by us
to access the Service or extract data or gather or use information, such as
email addresses, available from the Service or transmit any unsolicited
advertising, "junk mail," "spam," or "chain letters";
- frame any
part of the Service, or link to the Service, or otherwise make it look like you
have a relationship to us or that we have endorsed you or your Content for any
purpose except as expressly permitted in writing by VisitorDay;
or misrepresent your affiliation with any person or entity;
engineer any licensed software, application, games or any other aspect of the
Service or do anything that might discover source code, or bypass or circumvent
measures employed to prevent or limit access to any area, content or code of the
- send to or
otherwise impact us or the Service (or anything or anyone else) with harmful,
illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or
other code that could adversely impact the Service or any recipient; or
- take any
action which might impose a significant burden (as determined by us) on the
Service's infrastructure or computer systems, or otherwise interfere with the
ordinary operation of the Service.
- You have no
right to receive or keep payments from us for traffic that we suspect or
determine at any time to be fraudulent. Furthermore, you will not be paid for
traffic to an Excluded URL or traffic that we determine has come as a result of
a Wrongful Act.
- You may not
generate traffic to your pages or other pages within the Service by any of the
following methods: listings on newsgroups, bulk e-mailing, icq postings, or
chatroom/irc postings, iframes, zero pixel frames, hitbots, clickbots, spiders,
farms or any other similar method.
Damages. IF YOU SEND UNSOLICITED COMMERCIAL EMAIL OR ADVERTISING, BULK EMAIL,
SPAM, OR CHAIN LETTERS (COLLECTIVELY, "UNSOLICITED EMAIL OR OTHER
COMMUNICATION") THROUGH THE SERVICE, YOU ACKNOWLEDGE THAT YOU WILL HAVE CAUSED
SUBSTANTIAL HARM TO VISITORDAY, BUT THAT THE AMOUNT OF THE HARM WOULD BE
EXTREMELY DIFFICULT TO ASCERTAIN. AS A REASONABLE ESTIMATION OF SUCH HARM, YOU
WILL PAY LICENSOR $40 FOR EACH SUCH UNSOLICITED EMAIL OR OTHER COMMUNICATION.
OF SERVICE CONTENT; RESOLUTION OF USER DISPUTES
- No Duty to
Monitor. We are under no obligation to restrict or monitor the Service or any
Content in any way. VISITORDAY DOES NOT REGULARLY MONITOR THE ACCURACY OR
RELIABILITY OF CONTENT. However, we reserve the right to modify or remove any
Content at any time. Any opinions, advice, statements, services, offers, or
other information or Content expressed or made available by third parties,
including other users, are those of the respective author(s) and not of
VisitorDay. VisitorDay neither endorses nor is responsible for the accuracy or
reliability of any opinion, advice, information, or statement made on the
- Right to
Resolve Disputes. VisitorDay has the right, but not the obligation to resolve
disputes between users relating to the Service and VisitorDay's resolution of a
particular dispute does not create an obligation to resolve any other dispute.
VisitorDay’s resolution of any dispute is final with respect to the Service.
- License by
VisitorDay to You. You must respect the intellectual property laws protecting
our Service. VisitorDay grants you a limited, revocable, non-transferable,
non-sublicensable, non-exclusive license, under the rights VisitorDay has in the
Content, to privately display and perform the Content on your computer for your
own personal, noncommercial purposes.
of Rights. On its own behalf and the behalf of its licensors, VisitorDay
reserves all rights in the Content, including any software, not expressly
granted in this Section 9. VisitorDay does not in any way grant any other rights
to you. Except as expressly stated in this Section 9, you may not reproduce,
distribute, modify, publicly perform or display, or prepare derivative works of
any Content, including any software, without prior written consent from
VisitorDay or other third-party owner of the rights in that Content (if any).
incorporated into these Terms. We reserve the right to contact you about these
Terms or any Content or activities relating to the Service.
- Right to
Terminate. We may, at any time, without notice to you, terminate your access to
the Service, and your Account, or block your access to the Service if:
- we believe
in our sole discretion that you may have violated these Terms or have otherwise
engaged in any activities that may harm or damage the reputation, rights,
person, or property of VisitorDay, our users, or any other person;
by law enforcement or other government agencies; or
Account has extended periods of inactivity.
- Notice of
Termination. If applicable law requires us to provide notice of termination or
cancellation, we may give prior or subsequent notice by posting it on the Site
or by sending a communication to any address (email or otherwise) that we have
for you in our records.
- Effect of
Termination. Upon termination of your Account or the Service, your agreement
with VisitorDay pursuant to these Terms will also terminate, except that the
following provisions survive the termination: Section 4 "Posting Content on the
Service; Representations and Warranties," Section 5 "Ownership of Rights;
License Rights; User Submissions," Section 9 “Protection of Content,” Section 13
"Indemnification," Section 14 "Disclaimer of Warranties," Section 15 "Exclusion
of Damages; Limitation of Liability," and Section 19 "Additional Terms" and the
no longer have access to the Content you posted on the Service.
WITH MERCHANTS; LINKS
Advertisements and Links. The Service contains advertisements, offers, or other
links to websites of third parties that we do not control. Advertisements and
other information provided by third parties may not be wholly accurate.
VisitorDay is not responsible or liable for (i) the availability or accuracy of
such sites or advertisements; or (ii) the content, products or services
available from such sites. The inclusion of any link on the Service does not
imply that we endorse the linked site. You use the links at your own risk.
you link to another website, its privacy statement applies to any personal
information you supply.
Transactions with Third Parties. Your transactions and other dealings with third
party merchants or advertisers that are found on or through the Service,
including "click to purchase," “co-registration,” and other similar programs,
including payment and delivery of related goods or services, are solely between
you and such merchant or advertiser.
You agree to hold VisitorDay, and their
subsidiaries, affiliates (for example, those listed at www. VisitorDay.com),
officers, directors, employees, agents, attorneys, and suppliers, and each of
their respective successors and assigns (collectively, the “Indemnified
Persons”), harmless from, and indemnify them for, all damages, costs, expenses
and other liabilities, including reasonable attorneys' fees and expenses,
relating to any claim arising out of or related to: (i) your access to and use
of the games, software, and other aspects of the Service and the Content; (ii)
your violation of these Terms, and any applicable law or the rights of another
person or party; (iii) any dispute you have with any user of the Service and any
dispute you have related to any merchant or advertising found on or through the
Service; (iv) VisitorDay’s resolution (if any) of any dispute you have with any
user of the Service; (v) your improper authorization for VisitorDay to collect,
use or disclose any Content provided by you; and (vi)any disclosures made with
VISITORDAY PROVIDES THE SERVICE "AS IS" AND "AS
AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY LAW, VISITORDAY MAKES NO
REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO
THE OPERATION OF THE SERVICE OR THE INFORMATION, GAMES, SOFTWARE, OR CONTENT
INCLUDED IN THE SERVICE. VISITORDAY MAKES NO REPRESENTATIONS OR WARRANTIES THAT
THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO
THE MAXIMUM EXTENT PERMITTED BY LAW, VISITORDAY EXPRESSLY DISCLAIMS ALL
REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND
THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME
JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME
OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE URGE YOU TO KEEP BACKUP COPIES
OF YOUR PERSONAL CONTENT, IF ANY, THAT YOU MAINTAIN ON OR USE WITH THE SERVICE.
IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING
PROPERTY, MATERIAL, EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR ANY RESULTING
COSTS OR DAMAGES.
OF DAMAGES; LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF
THE INDEMNIFIED PERSONS ARE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, STATUTORY, OR CONSEQUENTIAL DAMAGES,
LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR
ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN
THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU
OF THE INDEMNIFIED PERSONS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
respects the intellectual property rights of others and requests that users of
the Service do the same. If you believe that your work is being used on the
Service in a way that constitutes copyright infringement, you may notify us by
providing our copyright agent with the following information in writing:
electronic or physical signature of the owner of the copyright or the person
authorized to act on the owner's behalf;
identification of the copyrighted work that you claim has been infringed;
identification of the material that is claimed to be infringing and information
reasonably sufficient to permit VisitorDay to locate the material (for example,
by providing a URL to the material);
- your name,
address, telephone number, and email address;
- a statement
by you that you have a good faith belief that the disputed use is not authorized
by the copyright owner, its agent, or the law; and
- a statement
that the information in your notification is accurate and a statement, made
under penalty of perjury, that you are the copyright owner or are authorized to
act on the copyright owner's behalf.
designated agent to receive notification of claimed infringement can be reached
at: Copyright Agent 26111 Brush Ave. Suite 210, Cleveland, OH 44132 or at
- It is our
policy to terminate in appropriate circumstances any Account or user for
repeated infringement of intellectual property rights, including copyrights, and
we also reserve the right to terminate an Account or user for even one instance
may access, preserve and disclose to third parties any of your information or
data (including personally identifiable information and private communications)
related to a written complaint of copyright infringement if we believe in our
sole discretion that such access, preservation, or disclosure is necessary or
useful to respond or otherwise address such complaint.
We have no obligation to provide you with
customer support of any kind. However, we may provide you with customer support
from time to time, at our sole discretion, if you have created an Account and
you submit your customer support questions using your Account.
- NOTICES AND
Except as otherwise provided in these Terms,
VisitorDay will give you any notices by posting them on the Site. Since notice
of any material change to the Terms will be posted to the Site for at least 30
days, we encourage you to visit the Site at least that often. You also authorize
VisitorDay to send notices (including notice of subpoenas or other legal
process, if any) via electronic mail to either your VisitorDay email account or
to the non- VisitorDay email address that we have on record for you. You must
check the Site for notices, and you will be considered to have received a notice
when it is made available to you by posting on the Site or when sent by
VisitorDay via electronic mail, whether or not received by you. VisitorDay may
provide notice to any email or other address that you provide to us. You must
keep your address current and any notice sent by VisitorDay to the address that
you have most recently provided is effective notice. With the exception of
notices related to removal of licensed material and to copyright infringement as
described in Sections 5 and 16 above, respectively, you must send us any notice
by mailing it to our address for Legal Notices which is: VisitorDay, LLC., 26111
Brush Ave. Suite 210, Cleveland, OH 44132, U.S.A., Attn: Legal Department.
to Conduct Transactions Electronically. All of your transactions with or through
the Service may, at our option, be conducted electronically from start to
finish. If we decide to proceed non-electronically, those services will still be
governed by the remainder of these Terms unless you enter into different terms
on a form provided by us. If the law allows you to withdraw this consent or if
we are ever required to deal with you non-electronically, we reserve the right
to charge or increase fees and you agree to print or make an electronic copy of
the Terms and any other contract or disclosure that we are required to provide
with Laws. You are responsible for compliance with applicable local laws. Access
to the Service Content by certain persons or in certain countries may not be
- No Agency;
No Third Party Beneficiary. These Terms do not create any agency, partnership,
joint venture, employee-employer or franchisor-franchisee relationship. Except
for the Indemnified Persons, there are no third party beneficiaries of these
- Severance .
If any part of the Terms is held by a court of competent jurisdiction to be
invalid or unenforceable, the invalid or unenforceable part will be given effect
to the greatest extent possible and the remainder will remain in full effect,
provided that the allocation of risks described in these Terms is given effect
to the fullest extent possible.
These Terms are personal to you and you may not transfer, assign or delegate
them to anyone without the express written permission of VisitorDay. Any attempt
by you to assign, transfer or delegate these Terms without the express written
permission of VisitorDay will be null and void. VisitorDay has the right to
transfer, assign and delegate these Terms to one or more third parties without
Jurisdiction; Choice of Law; Export Limitations. This Service is controlled by
us from our offices in the United States of America and is directed to U.S.
users. If you access the Service from locations outside the U.S., you do so at
your own risk and you are responsible for compliance with applicable local laws.
You may not use or export anything from the Service in violation of U.S. export
laws and regulations or the Terms. These Terms and all performances and claims
of every nature between us are governed by the laws of the State of Ohio,
U.S.A., without regard to any conflicts of laws principles that would result in
the application of the law of a different jurisdiction. You and VisitorDay
submit to the exclusive personal jurisdiction and venue of the state and federal
courts located within Cuyahoga County, Ohio.
on Actions. Any action concerning any dispute with respect to the Service must
be commenced within one year after the cause of the dispute arises, or the cause
of action is barred.
Interpretation. The paragraph headings in these Terms are included to help make
these Terms easier to read and have no binding effect. As used in these Terms,
the words “include” and “including” are meant to be illustrative and not
Agreement. These Terms (including terms incorporated into them, e.g., the
VisitorDay comprise the entire agreement (the "Entire Agreement") between you
and VisitorDay with respect to the use of the Service and supersede all
contemporaneous and prior agreements between the parties regarding the subject
matter contained herein, and neither party has relied on any representations
made by the other that are not expressly set forth in the Entire Agreement.
- No Waiver.
The failure of any party to exercise or enforce any right or provision of these
Terms, including any failure to act with respect to a breach, will not
constitute a waiver of such right or provision or that party’s right to act with
respect to subsequent or similar breaches. We suggest that you print out a copy
of these Terms for your records.
If you have a complaint, you may contact us at
VisitorDay, LLC. Legal Department, 26111 Brush Ave. Suite 210, Cleveland, OH 44132,
- NOTICE OF
AVAILABILITY OF FILTERING SOFTWARE
All users are hereby informed by the provider
of this interactive computer service that parental control protections (such as
computer hardware, software, or filtering services) are commercially available
that may assist in limiting access to material that is harmful to minors. A
report detailing some of those protections can be found at
Internet Protection Act: Report on the Effectiveness of Internet Protection
Measures and Safety Policies).
- NOTICE: NO
HARVESTING OR DICTIONARY ATTACKS ALLOWED
YOU MAY VIOLATE FEDERAL LAW IF YOU: (i)
INITIATE THE TRANSMISSION TO VISITORDAY COMPUTERS OR DEVICES OF A COMMERCIAL
ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT
DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (ii) ASSIST
IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF
ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
- NOTICE RE
The trademarks VisitorDay and all other
trademarks listed below or used in the Service are owned or used under license
by VisitorDay, LLC. and its affiliated organizations. The names of third parties
and their products mentioned may be their trademarks. You may not use any of the
above or other trademarks displayed on the Service or in any Service content.
All rights are reserved.
Copyright © 2010. VisitorDay, LLC.