2. YOUR OBLIGATIONS

2.1. You represent and warrant that:

 

• You are at least thirteen (13) years of age, or sixteen (16) years of age if you are an individual within the European Union (EU), or of the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into the Alberto Carniel Terms and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to the Alberto Carniel Terms;

• You are not a resident of (or will use the Alberto Carniel Services in) a country that the U.S. government has embargoed for use of the Alberto Carniel Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations;

• Your country of residence and/or your company’s country of incorporation is the same as the country specified in the contact and/or billing address you provide us;

• You understand that Alberto Carniel does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use or any of your End Users, or your compliance therewith;

 

And specifically regarding your User Content:

 

• You confirm you own all rights in and to any content uploaded or provided by you, or imported, copied or uploaded by Alberto Carniel Services for you, to your User Content, including any designs, images, animations, videos, audio files, fonts, logos, code, illustrations, compositions, artworks, interfaces, usernames, information you provide for the purpose of creating, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally access to, import, copy, use, publish, transfer or license such User Content, by you and us or any of our affiliates;

• You have (and will maintain) the full power, title, licenses, consents and authority to allow Alberto Carniel Services to access any websites, web pages and/or other online services, for the purpose of importing, copying, displaying, uploading, transmitting and/or otherwise using, your User Content;

• The User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to upload, import, copy, possess, post, transmit, display or otherwise use, in the country in which you or your User Account’s visitors (“End Users”) reside, or for Alberto Carniel and/or your End Users to access, import, copy, upload, use or possess in connection with the Alberto Carniel Services;

• You have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto.

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2.2. You undertake and agree to:

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• Fully comply with all applicable laws and any other contractual terms which govern your use of the Alberto Carniel Services (and any related interaction or transaction), including those specific laws applicable to you or your End Users in any of your geographical locations;

• Be solely responsible and liable with respect to any of the uses of the Alberto Carniel Services which occur under your User Account, and for any of your User Content (including for any consequences of accessing, importing, uploading, copying, using or publishing such User Content on or with respect to the Alberto Carniel Services);

• Regularly and independently save and backup any of your User Content and the information that is being processed by you regarding your User Account, including with respect to End Users, User Products, and any applications and/or Third Party Services used by you;

• Receive from time to time promotional messages and materials from Alberto Carniel or its partners, by mail, email or any other contact form you may provide us with (including your phone number for calls or text messages). If you wish not to receive such promotional materials or notices – please just notify us at any time;

• Allow Alberto Carniel to use in perpetuity, worldwide and free of charge, any version of your User Account (or any part thereof) for any of Alberto Carniel’s marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against Alberto Carniel or anyone on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your User Account with respect to such limited permitted uses.

 

Alberto Carniel’s sole discretion as to the means, manner, and method for performing the Alberto Carniel Services, including those regarding the hosting, transmission, publication and/or display of any User Account and/or Content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto).

 

Alberto Carniel shall have the right to offer the Alberto Carniel Services in alternative price plans and impose different restrictions as for the upload, storage, download and use of the Alberto Carniel Services in each price plan, including, without limitation, restrictions on network traffic and bandwidth, size and/or length of Content, quality and/or format of Content, sources of Content, volume of download time, number of subscribers to your Content, etc.

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2.3. You agree and undertake not to:

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• Copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Alberto Carniel Website, the Alberto Carniel Services (or any part thereof), any Content offered by Alberto Carniel or Third Party Services for use and display within User Account (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without Alberto Carniel’s prior written and specific consent and/or as expressly permitted under the Alberto Carniel Terms;

• Submit, transmit or display any User Content, or use Licensed Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Alberto Carniel or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;

• Use any illegal action to collect login data and/or passwords for other websites, third parties, software or services;

• Phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI DSS standard when applicable;  

• Upload, insert, collect or otherwise make available within the Alberto Carniel Website or the Alberto Carniel Services (or any part thereof), any malicious, unlawful, defamatory or obscene Content;

• Publish and/or make any use of the Alberto Carniel Services or Licensed Content on any website, media, network or system other than those provided by Alberto Carniel, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the Alberto Carniel Services, Licensed Content and/or User Account (or any part thereof), except as expressly permitted by Alberto Carniel, in advance and in writing;

• Use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Alberto Carniel Services (or its data and/or Content), or in any way reproduce or circumvent the navigational structure or presentation of any of the Alberto Carniel Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Alberto Carniel Services;

• Act in a manner which might be perceived as damaging to Alberto Carniel’s reputation and goodwill or which may bring Alberto Carniel into disrepute or harm;

• Purchase search engine or other pay per click keywords (such as Google Ads), or domain names that use Alberto Carniel or Alberto Carniel Marks and/or variations and misspellings thereof;

• Impersonate any person or entity or provide false information on the Alberto Carniel Services and/or User Account, whether directly or indirectly, or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to Alberto Carniel and/or any End Users;

• Falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that Alberto Carniel or any third party endorses you, your User Account, your business, your User Products, or any statement you make;

• Reverse look-up, trace, or seek to trace another User of Alberto Carniel Services, or otherwise interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Alberto Carniel Services and/or User Account without their express and informed consent;

• Disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Alberto Carniel Services, User Account, the account of another User(s), or any other systems or networks connected to the Alberto Carniel Services, by hacking, password mining, or other illegitimate or prohibited means;

• Probe, scan, or test the vulnerability of the Alberto Carniel Services or any network connected to the Alberto Carniel Services;

• Upload to the Alberto Carniel Services and/or User Account or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;

• Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Alberto Carniel Services or Alberto Carniel’s systems or networks connected to the Alberto Carniel Services, or otherwise interfere with or disrupt the operation of any of the Alberto Carniel Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;

• Use any of the Alberto Carniel Services and/or User Account in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;

• Access to Alberto Carniel Services, User Accounts, Licensed Content and/or User Content, through any means or technology (e.g. scraping and crawling), other than our publicly supported interfaces;

• Sell, license, or exploit for any commercial purposes any use of or access to the Licensed Content and/or Alberto Carniel Services, except as expressly permitted by the Alberto Carniel Terms;

• Remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or ™] contained in or accompanying the Alberto Carniel Services and/or Licensed Content; or

• Violate, attempt to violate, or otherwise fail to comply with any of the Alberto Carniel Terms or any laws or requirements applicable to your use of the Alberto Carniel Services;

• Access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service.

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You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination of your User Account and/or any Services provided to you – with or without further notice to you, and without any refund of amounts paid on account of any such Services.

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3. CONTENT AND OWNERSHIP

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3.1. Your Intellectual Property

As between Alberto Carniel and you, you shall own all intellectual property pertaining to your User Content and to any other materials created by you, including to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, code, interfaces, text and literary works. Alberto Carniel does not claim ownership rights on your content. For the sole purpose of granting you the service, you know and agree that we will need to access, upload and/or copy your User Content to our platform, including cloud services and CDN’s, to make display adjustments, to duplicate for backup and perform any other technical actions and/or uses required to perform our services, as we deem fit.

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3.2. Alberto Carniel’s Intellectual Property

All rights, title and interest in and to the Alberto Carniel Services, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law, including: any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, documentation, derivatives and versions thereof, the “look and feel” of the Alberto Carniel Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to Alberto Carniel.

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Subject to your full compliance with the Alberto Carniel Terms and timely payment of all applicable Fees, Alberto Carniel hereby grants you, upon creating your User Account and for as long as Alberto Carniel wishes to provide you with the Alberto Carniel Services, a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the Alberto Carniel Services and Licensed Content, for the purpose of generating and displaying your User Account to End Users and offering your User Products (as defined below) therein, solely as expressly permitted under the Alberto Carniel Terms, and solely within the Alberto Carniel Services.

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The Alberto Carniel Terms do not convey any right or interest in or to Alberto Carniel’s Intellectual Property (or any part thereof), except only for the limited license expressly granted above. Nothing in the Alberto Carniel Terms constitutes an assignment or waiver of Alberto Carniel’s Intellectual Property rights under any law.

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In addition to the above, certain fonts made available to you within the Alberto Carniel Services, are licensed to Alberto Carniel by a third party provider, and are therefore subject to additional license terms of such provider, which are summarized and available for your review.

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3.3. Feedback and Suggestions

If you provide us with any suggestions, comments or other feedback relating to the Alberto Carniel Services (whether existing, suggested or contemplated), which is or may be subject to any Intellectual Property rights (“Feedback”), such Feedback shall be exclusively owned by Alberto Carniel. By providing such Feedback to Alberto Carniel, you acknowledge and agree that it may be used by Alberto Carniel in order to:

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• Further develop, customize and improve of the Alberto Carniel Services;

• Provide ongoing assistance and technical support;

• Contact you with general or personalized Alberto Carniel-related notices and/or interview requests based on your feedback; or otherwise

• Facilitate, sponsor and offer certain promotions, and monitor performance;

• To create aggregated statistical data and other aggregated and/or inferred information, which Alberto Carniel may use to provide and improve its services;

• To enhance Alberto Carniel data security and fraud prevention capabilities; and

• To comply with any applicable laws and regulations.

 

In addition, you:

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• Represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights;

• Irrevocably assign to Alberto Carniel any right, title and interest you may have in such Feedback; and

 

Explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback.

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4. PRIVACY

Certain parts of the Alberto Carniel Services (including certain Third Party Services available therein) require or involve the submission, collection and/or use of certain personally identifying or identifiable information. In particular and as a part of accessing or using the Alberto Carniel Services, Alberto Carniel and such Third Party Services may collect, access and use certain data pertaining to Users and End Users, including the activities or navigation undertaken by Users and End Users through the Alberto Carniel Services and/or User Accounts. We encourage you to read our Privacy Policy and each such Third Party Services’ relevant policies on a regular basis, for a description of such data collection and use practices.

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5. SERVICE FEES

5.1. Paid Services

The use of certain Alberto Carniel Services may be subject to payment of particular fees, as determined by Alberto Carniel in its sole discretion (“Paid Services” and “Fee(s)”, respectively). Alberto Carniel will provide notice of such Fees then in effect in relation to such Paid Services. If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance.

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Alberto Carniel reserves the right to change its Fees at any time, upon notice to you if such change may affect your existing subscriptions. If you received a discount or other promotional offer, Alberto Carniel shall have the right to automatically and without notice renew your subscription to such Alberto Carniel Service(s) at the full applicable Fee.

 

All Fees shall be deemed to be in U.S. Dollars, except as specifically stated otherwise in writing by Alberto Carniel. To the extent permitted by law (and unless specified otherwise by Alberto Carniel in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Alberto Carniel Services, or to any payments or purchases made by you. If Alberto Carniel is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction. We recommend that you verify the existence of any additional fees you may be charged by third parties in connection with the purchase of Paid Services or in connection with the renewal thereof (such as international transaction fees, currency exchange fees or fees due to banks or credit card companies). Alberto Carniel is not responsible for any such additional fees or costs.

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As part of registering or submitting information to receive Paid Services, you also authorize Alberto Carniel (either directly or through its affiliates, subsidiaries or other third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from our payment provider or your designated banking account, and to make any inquiries Alberto Carniel or its affiliates may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company).

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You may keep a credit card stored with Alberto Carniel to pay for Paid Services (“Stored Card”). You will be able to identify each Stored Card by its last four digits as in your Account Settings Page.

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Alberto Carniel is an independent contractor while providing Paid Services and you agree to provide all content required (text, articles, photos, graphics, videos, etc.) for the support of Alberto Carniel’s efforts unless stated otherwise in writing.

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Alberto Carniel may require certain tool/software/services to support our efforts. You agree to be responsible for all cost one time or monthly for such tools/software. Alberto Carniel agrees that it will not purchase or subscribe to such software without pre-approval from you unless stated otherwise in writing.

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You agree to give Alberto Carniel access to all required tools, software, websites, social media, landing pages, accounts, etc. to fulfill the Paid Services. Alberto Carniel will use best efforts to secure and protect all passcodes. Only authorized representatives of Alberto Carniel will be allowed to access passcodes and only on an as needed basis.

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You agree to allow Alberto Carniel to use your name and website for company promotions, online portfolio, past clients list, on social media, in print material, etc. for advertising and promoting Alberto Carniel’s services to other companies.

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Alberto Carniel reserves the right to assign certain subcontractors to fulfill Paid Services if it sees the need to do so in order to meet the requirements of the agreement.

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5.2. Invoices

Alberto Carniel and/or its affiliated companies will issue an invoice or credit memo for any payment of Fees or refund made to or by Alberto Carniel (“Invoice”). Each Invoice will be issued in electronic form and based on the country stated in your billing address, and will be made available to you via email upon request. For the purpose of issuing the Invoice, you may be required to furnish certain Personal Information (as such term is defined in the Privacy Policy) in order to comply with local laws.

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5.3. Payments

You agree to pay the price in full and in advance on the date stated in the invoice. For Paid Services that cost more than $10,000, you may be eligible to pay the full price in different installments. Installments are optional and at the sole discretion of Alberto Carniel. They must be agreed in writing and are not available for recurring Paid Services like subscriptions or advertising management agreements.

 

Recurring Paid Services will be billed a month in advance and payments will be due on the date specified in the invoice. If payments due date is not determined in writing, all payments are due to the first day of the month. 

 

Alberto Carniel has the right to immediately terminate the agreement in the event the Paid Services are not pre-paid for by you.

 

In the event travel is required to fulfill Paid Services, you shall reimburse Alberto Carniel for expenses incurred. You will be able to pre-approve such expenses.

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5.4. Subscription Auto-Renewals

In order to ensure that you do not experience any interruption or loss of services, certain Paid Services include an automatic renewal option by default, according to which, unless you turn-off  the auto-renewal option, such Paid Services will automatically renew upon the end of the applicable subscription period, for a renewal period equal in time to the original subscription period (excluding extended periods) and, unless otherwise notified to you, at the same price (subject to applicable Taxes changes and excluding any discount or other promotional offer provided for the first period) (“Renewing Paid Services”). For example, if the original subscription period for a Service is one month, each of its renewal periods (where applicable) will be for one month. Accordingly, where applicable, Alberto Carniel will attempt to automatically charge you the applicable Fees using the Stored Card, within up-to two (2) weeks before such renewal period commences. In the event of failure to collect the Fees owed by you, we may in our sole discretion (but shall not be obligated to) retry to collect on a later time, and/or suspend or cancel your User Account, without further notice.

 

By entering into this Agreement and by purchasing a Renewing Paid Service, you acknowledge and agree that the Renewing Paid Service shall automatically renew in accordance with the above terms. 

 

In general, you may turn-off the auto-renewal option or cancel your Renewing Paid Services via your User Account or by contacting Alberto Carniel support. You must give 30-day written notice.

 

An advertising management agreement can be terminated after the first 3 months by giving Alberto Carniel 30-day written notice.

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You are and shall be solely responsible to verify and ensure the successful renewal of the Alberto Carniel Services you use (whether or not such Alberto Carniel Services are subject to automatic subscription renewals). Accordingly, you shall be solely responsible with respect to any discontinuation of any Alberto Carniel Services previously purchased by you, including due to a cancellation, failure to charge the applicable recurring Fees, or due to any Alberto Carniel Services not being subject to automatic subscription renewals. You acknowledge and agree that you shall not have any claims against Alberto Carniel in relation to the discontinuation of any Alberto Carniel Services or Third Party Services, for whatever reason.

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5.5. Money-Back Guarantee and Performance Liability

There is no money-back guarantee.

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You acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Alberto Carniel can make no guarantee on the results that may be provided as a result of our work. Alberto Carniel represents that in good faith it shall make every effort to ensure that your digital marketing is successful as a result of our work. Alberto Carniel does not warrant that the functions supplied by its work, web pages, digital marketing, consultation, advice, or work will meet your requirements or that the operation of the work/deliverables will be uninterrupted or error-free. The entire risk as to the quality and performance of the work and deliverables is with you. In no event, will Alberto Carniel be liable to you or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these digital marketing services or website(s), even if Alberto Carniel has been advised of the possibility of such damages.

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5.6. Chargebacks

If, at any time, we record a decline, chargeback or other rejection of a charge of any payable Fees on your Alberto Carniel account (“Chargeback”), this will be considered as a breach of your payment obligations hereunder, and your use of the Alberto Carniel Services may be automatically disabled or terminated.

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In the event a Chargeback is performed, your User Account may be blocked without the option to re-purchase or re-use it, and any data contained in such User Account, including any domains, applications and Third Party Services may be subject to cancellation and Capacity Loss (as defined in Section 6.3 below).

 

Your use of the Alberto Carniel Services will not resume until you re-subscribe for any such Alberto Carniel Services, and pay any applicable Fees in full, including any fees and expenses incurred by Alberto Carniel and/or any Third Party Services for each Chargeback received (including Fees for Alberto Carniel Services provided prior to the Chargeback, handling and processing charges and fees incurred by the payment processor).

 

If you have any questions or concerns regarding a payment made to Alberto Carniel, we encourage you to first contact our Customer Support team before filing a Chargeback or reversal of payment, in order to prevent the Alberto Carniel Services from being cancelled and your User Account being blocked, and to avoid the filing of an unwarranted or erroneous Chargeback, which may result in your being liable for its applicable Fees, in addition to re-payment of all the Fees applicable to the Alberto Carniel Services purchased (and charged-back) by you.

 

We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter.

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6. CANCELLATION

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6.1. Cancellation by User

You may discontinue to use and request to cancel your User Account and/or any Alberto Carniel Services at any time, in accordance with the instructions available on the Alberto Carniel Services. The effective date and time for such cancellation shall be the date and time on which you have completed the cancellation process on the Alberto Carniel Services, and the effective date for cancellation of Paid Services shall be at the end of such Paid Services’ subscription period.

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Notwithstanding anything to the contrary in the foregoing, with respect to subscriptions to Renewing Paid Services, such subscription will be discontinued only upon the expiration of the respective period for which you have already made payment. Please note that as the cancellation process may take a few days, in order to avoid the next automatic renewal and respective charge the cancellation request should be made at least thirty (30) days prior to the expiration of the then-current service period.

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6.2. Cancellation by Alberto Carniel

Failure to comply with any of the Alberto Carniel Terms and/or to pay any due Fee shall entitle Alberto Carniel to suspend (until full payment is made) or cancel your User Account (or certain features thereof), as well as the provision of any related Alberto Carniel Services (e.g., Paid Services) or Third Party Services to you.

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Alberto Carniel is also entitle to terminate Paid Services for any reason by giving you 30-day written notice.

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6.3. Loss of Data, Content and Capacity

If your User Account or any Alberto Carniel Services or Third Party Services related to your User Account are cancelled (whether at your request or at Alberto Carniel’s discretion), it may cause you or result in the loss of certain content, features, capacity, clients, money and business (“Capacity Loss”).

 

Alberto Carniel shall not be liable in any way for such Capacity Loss. Please also note that additional Fees may apply to re-activation of a User Account and/or any Alberto Carniel Services following their cancellation, as determined by Alberto Carniel in its sole discretion.

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7. Video Services

As part of the Alberto Carniel Services, Alberto Carniel may provide video services (such as Alberto Carniel Marketing Library) for managing videos on User Accounts (the "Video Services").

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The use of the video services for your User Account, may require that you receive a license to use certain patents from MPEG–LA (the "License").  It is your own exclusive responsibility to decide whether your activity requires a License and to obtain it. Information about the License can be obtained from MPEG LA L.L.C.

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In addition to the aforesaid in Section 10 of these Terms of Use and without any limitation of liability, you shall fully indemnify, defend and hold Alberto Carniel its officers, directors, shareholders, employees, affiliates and agents, harmless from any and all damages and costs, obligations, losses, liabilities debt and expenses (including attorneys’ fees), as accrued, that arise out of or are related to infringement and/or misuse of the patent pool under the MPEG-LA consortium.

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8. MISCONDUCT AND COPYRIGHTS

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8.1. Misconduct and Abuse

When using the Alberto Carniel Services, you may be exposed to User Accounts, User Content or Third Party Services from a variety of sources, which may be inaccurate, offensive, objectionable or illegal. You hereby waive any legal or equitable rights or remedies you have or may have against Alberto Carniel with respect thereto.

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If you believe a User or any Third Party Services acted inappropriately or otherwise misused any of the Alberto Carniel Services, please immediately report such User and/or Third Party Service to us via this form. You agree that your report shall not impose any responsibility or liability upon Alberto Carniel, and that Alberto Carniel may consider such report and act upon it, refrain from taking any such action or require additional information or documents before doing so, at its sole discretion.

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8.2. Copyrights

Alberto Carniel acts in accordance with its interpretation of the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied or was otherwise used in a way that constitutes copyright infringement, you may notify us of such infringement via email:

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1. The contact details of the person authorized to act on behalf of the owner of the copyright;

2. A description of the copyrighted work that you claim has been infringed;

3. A description of the material that you claim 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 sufficient to permit Alberto Carniel to locate the material (including URL address);

4. A statement that you have 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

5. A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.

 

In the event that Alberto Carniel receives notice regarding a copyright infringement related to your User Account, it may cancel it, take your User Account down or remove any Content in its sole discretion, with or without prior notice to you. In such case, you may file a proper counter-notice in accordance with Section 512 of the DMCA, in which you must include:

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1. Your full name, address, phone number and physical or electronic signature;

2. Identification of the material and its location before removal;

3. A statement under penalty of perjury that the material was removed by mistake or misidentification;

4. Your consent to an appropriate judicial body; and

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Any other information required under the relevant provisions of the DMCA. Any notices filed pursuant to this Section 8 may be deemed accepted, applicable and compliant with the DMCA, or not, at Alberto Carniel’s sole reasonable discretion. Alberto Carniel reserves the right to notify the person or entity providing the infringement notice of such counter-notice and provide any details included therein.

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You represent (inform) to Alberto Carniel and unconditionally guarantee that any elements of text, graphics, videos, photos, content, designs, trademarks or other artwork furnished to Alberto Carniel for inclusion in web pages, social media, etc. are owned by you, or that you have permission from the rightful owner to use each of these elements. You agree to hold harmless, protect, and defend Alberto Carniel from any claim or suit arising from the use of such elements furnished by you.

 

Alberto Carniel or its partners retain the intellectual rights to all items previously owned by Alberto Carniel/partner. You retain the rights to all deliverables that are not marked as Alberto Carniel property. Items that are not specifically transferred to you will remain the property of their respective owners. Alberto Carniel may choose (at its sole discretion and in writing) to give you a one-time lifetime license for use of any of its intellectual property.

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9. DISCLAIMER OF WARRANTIES

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We provide the Alberto Carniel Services on an “As Is”, “with all faults” and “As Available” basis, without any warranties of any kind, including any implied warranties or conditions of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, or any other warranty – all to the fullest extent permitted by law. We specifically do not represent or warrant that the Alberto Carniel Services (or any part, feature or Content thereof) are complete, accurate, of any certain quality, reliable or secure in any way, suitable for or compatible with any of your (or your End Users’) contemplated activities, devices, operating systems, browsers, software or tools (or that they will remain as such at any time), or comply with any laws applicable to you or your End Users (including in any jurisdiction in which you operate), or that their operation will be free of any viruses, bugs or other harmful components or program limitations. Moreover, we do not endorse any entity, product or service (including any Third Party Services) mentioned on or made available via the Alberto Carniel Services – so please be sure to verify those before using or otherwise engaging them.

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Alberto Carniel may, at its sole discretion (however it shall have no obligation to do so), screen, monitor and/or edit any User Account and/or User Content, at any time and for any reason, with or without notice.

 

Notwithstanding anything to the contrary in the foregoing, in no circumstances may Alberto Carniel be considered as a “publisher” of any User Content, does not in any way endorse any User Content, and assumes no liability for any User Content uploaded, posted, published and/or made available by any User or any other party on and/or through the Alberto Carniel Services, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any User Content. Furthermore, Alberto Carniel shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing User Content you or any other party may encounter.

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You acknowledge that there are risks in using the Alberto Carniel Services and/or connecting and/or dealing with any Third Party Services through or in connection with Alberto Carniel Services, and that Alberto Carniel cannot and does not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions. Such risks may include, among others, misrepresentation of information about and/or by Third Party Services and/or Licensed Content, breach of warranty and/or contract, violation of rights, and any consequent claims.

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Alberto Carniel does not recommend the use of the Alberto Carniel Services for hosting of personal content and shall not bear any security or integrity obligations or risks regarding breach or damage to any such content.

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Please note that certain Alberto Carniel Services are currently offered in their BETA version, and undergoing BETA testing. You understand and agree that certain Alberto Carniel Services may still contain software bugs, suffer disruptions and not operate as intended or designated. Your use of the Alberto Carniel Services at this BETA stage signifies your agreement to participate in such Alberto Carniel Services’ BETA testing.

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10. LIMITATION OF LIABILITY

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To the fullest extent permitted by law in each applicable jurisdiction, Alberto Carniel, its officers, directors, shareholders, employees, affiliates and/or agents shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from:

 

1. Errors, mistakes, or inaccuracies of or in any content; 

2. Any personal injury or property damage related to your use of the Alberto Carniel Services; 

3. Any unauthorized access to or use of our servers and/or any personal information and/or other information stored therein; 

4. Any interruption or cessation of transmission to or from the Alberto Carniel Services; 

5. The use or display of any Content or User Content posted, emailed, transmitted, or otherwise made available via the Alberto Carniel Services; 

6. Events beyond the reasonable control of Alberto Carniel, including any internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties; and/or

7. Loss of use, data, profits, goodwill, or other intangible losses, resulting from the use or the inability to use any or all of Alberto Carniel Services.

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You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for Alberto Carniel’s services to you, and such limitations will apply even if Alberto Carniel has been advised of the possibility of such liabilities.

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11. INDEMNITY

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You agree to defend, indemnify and hold harmless Alberto Carniel, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys’ fees) arising from:

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1. Your violation of any term of these Terms of Use or any other Alberto Carniel Terms;

2. Your violation of any third party right, including any copyright, access rights, property, or privacy right, resulting from your User Account or User Content and/or your use of the Alberto Carniel Services, including, without limitation, Alberto Carniel Services’ actions for your benefit; and/or

3. Any other type of claim that your User Account and/or User Content caused damage to a third party.

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12. GENERAL

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12.1. Changes & Updates

Alberto Carniel reserves the right to change, suspend or terminate any of the Alberto Carniel Services (or any features thereof, or prices applicable thereto), and/or cancel your access to any of the Alberto Carniel Services (including removal of any materials created by you in connection with the Alberto Carniel Services) for any reason and/or change any of the Alberto Carniel Terms with or without prior notice - at any time and in any manner.

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You agree that Alberto Carniel will not be liable to you or to any third party for any modification, suspension or discontinuance of those Alberto Carniel Services.

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If any such changes involve the payment of additional Fees, we will provide you with a notice of such Fees prior to enabling such specific changes. If you fail or refuse to pay such Fees, we may (at our sole discretion) cancel your User Account (as further explained in Section 6 above), continue to support your then-current Alberto Carniel Services without enabling such changes, or provide you with alternative Services.

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12.2. Governing Law & Jurisdiction; Class Action Waiver

The Alberto Carniel Terms, the rights and remedies provided hereunder, and any and all claims and disputes related hereto and/or to the Alberto Carniel Services, their interpretation, or the breach, termination or validity thereof, the relationships which result from or pursuant to the Alberto Carniel Terms, or any related transaction or purchase, shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the internal substantive laws of the United States of America, without respect to its conflict of laws principles.

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Any and all such claims and disputes shall be brought in, and you hereby consent to them being decided exclusively by, a court of competent jurisdiction located in Philadelphia (PA, USA). The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby expressly excluded.

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Subject to any applicable law, all disputes between you and Alberto Carniel shall only be resolved on an individual basis and you shall not have the right to bring any claim against Alberto Carniel as a plaintiff or a member of a class, consolidated or representative actions (or any other legal proceedings conducted by a group or by representatives on behalf of others).

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Notwithstanding anything to the contrary in this Section 12.2, if you are located in the United States of America:

• The legal jurisdiction governing all aspects of the payment transaction contemplated by Section 5 between you and Alberto Carniel will be the State of Pennsylvania, without respect to its conflict of laws principles; and

• Any and all claims and disputes related to such payment transaction contemplated by Section 5 shall be brought in, and you hereby consent to them being decided exclusively by, a court of competent jurisdiction located in Philadelphia, Pennsylvania.

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12.3. Notices

We may provide you with notices in any of the following methods: 

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1. Via the Alberto Carniel Services, including by a banner or pop-up within the Alberto Carniel Website, User Account or elsewhere; 

2. By email, sent to the email address you provided us; and/or 

3. Through any other means, including any phone number or physical address you provided us. 

 

Alberto Carniel’s notice to you will be deemed received and effective within twenty four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice.

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12.4. Relationship

The Alberto Carniel Terms, and your use of the Alberto Carniel Services, do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Alberto Carniel and you.

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12.5. Entire Agreement

These Terms of Use, together with the Alberto Carniel Terms and any other legal or fee notices provided to you by Alberto Carniel, shall constitute the entire agreement between you and Alberto Carniel concerning the subject matter hereof or thereof, and supersede any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Alberto Carniel and you, including those made by or between any of our respective representatives, with respect to any of the Alberto Carniel Services. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Alberto Carniel in entering into any of the Alberto Carniel Terms.

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12.6. Assignment

Alberto Carniel may assign its rights and/or obligations hereunder and/or transfer ownership rights and title in the Alberto Carniel Services and/or Licensed Content to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Alberto Carniel.

 

Any attempted or actual assignment thereof without Alberto Carniel’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section 12.6 shall not in itself grant either Alberto Carniel or you the right to cancel any Alberto Carniel Services or Third Party Services then in effect.

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12.7. Severability and Waivers

If any provision of the Alberto Carniel Terms is deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. No Waiver of any breach or default of any of the Alberto Carniel Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.

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12.7. Severability and Waivers

If any provision of the Alberto Carniel Terms is deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. No Waiver of any breach or default of any of the Alberto Carniel Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.

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12.8. Interpretation

Any heading, caption or section title contained herein, and any explanation or summary under the right “In layman's terms” section, is provided only for convenience, and in no way defines or explains any section or provision hereof, or legally binds any of us in any way.

 

These Terms of Use were written in English, and translated into other languages for your convenience. You may access and view other language versions by changing your Alberto Carniel Website language settings. If a translated (non-English) version of these Terms of Use conflicts in any way with their English version, the provisions of the English version shall prevail.

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12.9. Customer Service Contact

To get in touch with our Customer Service - please use any of the options listed below:

 

Send an email message to: alberto[at]albertocarniel.com.