Modern Phoenix Neighborhood Network

Modern Phoenix LLC

Terms of Use

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE WEBSITE AND/OR SERVICES OFFERED BY MODERN PHOENIX, LLC.  THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AND ALL SERVICES PROVIDED BY MODERN PHOENIX, LLC.

1.         Accepting the Terms of Use and Modifications.

1.1      Modern Phoenix, LLC ("Modern Phoenix", "we", or "us") provides information, news, materials, content and social networking services through use of Modern Phoenix’s proprietary services and platforms.  You acknowledge that Modern Phoenix is an online service provider that provides a “Website” (defined below) and “Services” (defined below).

1.2      This Agreement governs the relationship between you and Modern Phoenix, LLC.  The term “Modern Phoenix” also includes all officers, owners, members, managers, agents, subsidiaries, affiliates, successors, licensees, and assigns of Modern Phoenix, LLC.  This Agreement applies to all users of the Website, including without limitation users who are visitors, vendors, buyers, sellers, customers, merchants, contributors of content, information, and other materials or services on or through the Website and/or Services (individually and collectively, “User(s)”).  Throughout this Agreement, the words “you” and “your” and “User” will refer to you as the visitor and/or user of the Website and/or Services. 

1.3      Please read this Agreement, our Privacy Policy and our Community Guidelines (collectively, the "Agreement"), carefully before using the Website at http://ModernPhoenix.net/ (the "Website") and/or the other services, products, features, programs, and/or content provided by Modern Phoenix or owned or controlled by Modern Phoenix (individually and collectively, the "Modern Phoenix Service" or “Service” or “Services”), except “Third-Party Services”, as defined and explained in more detail below.

1.4      Your use of the Website and/or Services and any material or content accessed through the Website and/or Services, regardless of whether you register as a User, or are a visitor, indicates your full acknowledgement, understanding, consent, agreement and acceptance of the terms of this Agreement, our Privacy Policy and our Community Guidelines incorporated herein by this reference.  In the case of any inconsistency between this Agreement and any other document that has been incorporated by reference herein, this Agreement shall control.  Certain areas of the Website and/or Services (and your access to or use of “Modern Phoenix Content” and “User Content” (defined below)) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions, including without limitation, the terms and conditions of the Forums and PHPBB.  If there is a conflict between this Agreement and terms and conditions posted for a specific area of the Website, Services, Modern Phoenix Content, or User Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Website, Services, Modern Phoenix Content, or User Content.

1.5      YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, OR BY USING THE WEBSITE, SERVICES (INCLUDING ANY USER CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, BY UPLOADING, VIEWING, DOWNLOADING OR POSTING ANY USER CONTENT FROM OR ON THE WEBSITE OR THROUGH THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE WEBSITE, SERVICES, MODERN PHOENIX CONTENT, OR USER CONTENT.  If you agree to this Agreement on behalf of a business, you represent and warrant that you have the authority to bind that business to this Agreement and your agreement to this Agreement will be treated as the agreement of the business. In that event, "you" and "your" will refer and apply to that business.

1.6      Modern Phoenix reserves the right to change, add or remove portions of this Agreement, the Privacy Policy and Community Guidelines at any time and at its sole discretion and without notice.  You agree to check this Agreement, and our Privacy Policy and Community Guidelines periodically for changes.  You are responsible for reviewing and becoming familiar with any modifications to this Agreement, Privacy Policy and Community Guidelines.  Modifications are effective when posted, and your use of the Service following any such posted modification means that you accept and agree to such changes.  As long as you strictly comply with this Agreement, Modern Phoenix grants you a personal, non-transferable, non-exclusive, revocable, limited privilege and license to create an Account, view and enter the Website, and use the Services.  IF YOU OBJECT TO ANY TERMS OR CONDITIONS OF THIS AGREEMENT OR ANY SUBSEQUENT MODIFICATIONS THEREOF, OR IF YOU BECOME DISSATISFIED WITH THE WEBSITE AND/OR SERVICE IN ANY WAY, YOU AGREE THAT YOUR SOLE RECOURSE IS TO IMMEDIATELY (1) DISCONTINUE YOUR USE OF THE WEBSITE AND/OR SERVICES AND (2) CLOSE YOUR TERMINATE YOUR ACCOUNT BY SENDING AN EMAIL TO support@ModernPhoenix.net.  Modern Phoenix will not accept any counter-offers to this Agreement, and all such offers are hereby categorically and expressly rejected.

2.         User Account Registration, Eligibility, and Security.

2.1      In order to gain access to the Services offered by or through the Website, you will need to register as a user, create a user account, and establish a password (“account” or “Account” or “User Account”).  You hereby grant us a personal, non-transferable, non-exclusive, irrevocable, limited privilege and license to use your actual first and last name as you have provided to us and/or any other name, handle, nickname, or username you may designate, and you hereby waive any rights to bring an action against us for violation of your rights of publicity and/or privacy. 

2.2      To open a User Account, you must be at least 13 years of age or else you are prohibited from accessing the Website and/or Services without verified parental consent furnished to Modern Phoenix in accordance with the Children's Online Privacy Protection Act of 1998.  You hereby represent and warrant that you are 13 years of age or older.  You otherwise may only use the Website and/or Services if you can form a binding contract with Modern Phoenix and are not legally prohibited from using the Website and/or Services.  

2.3      You represent that all information you provide during the registration process and at any time thereafter, including all information you provide in your “Profile” (“Registration Information”) will be true, accurate, complete, and current and that you will promptly update your Registration Information as necessary such that it is, at all times, true, accurate, complete, and current.  You agree that Modern Phoenix may terminate your rights to any part of or the entire Service if any information you provide is false, incomplete or inaccurate.  Modern Phoenix reserves the right to reject any username that is, in Modern Phoenix’s sole and absolute judgment, offensive.  You may not: (a) select or use as your username a name of another person with the intent to impersonate that person; (b) use as your username a name subject to any rights of a person other than you without appropriate authorization; (c) use as your username a name that is offensive, vulgar or obscene; or (d) use another User’s account or registration information, for Modern Phoenix or any Third Party Services you access through Modern Phoenix, without permission.

2.4      You agree that Modern Phoenix may store and use the Registration Information you provide for use in maintaining your Account.  Modern Phoenix may use all Registration Information, subject to Modern Phoenix’s compliance with the Privacy Policy.  This Agreement includes terms and conditions set forth in the Privacy Policy.  By indicating your agreement to this Agreement, you are consenting to have your personal data used by Modern Phoenix as set forth in the Privacy Policy. 

2.5      You agree that you are solely responsible for maintaining the confidentiality and security of your Account.  You agree that you are entirely responsible for all activities that occur on or through your Account, and you agree to immediately notify Modern Phoenix of any unauthorized use of your Account or any other breach of security.  You agree to not reveal your Account information to anyone else or use anyone else’s Account.  You agree that Modern Phoenix is not responsible for any losses arising out of any use, whether authorized or unauthorized by you, of your Account.  You agree to use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your password or other information about your Account.  You also agree to use the Website and/or Services for your sole, personal use and agree not to authorize others to use the Website and/or Services with your Account or otherwise transfer your right to use the Website and/or Services to any other person or entity.  You also agree not to use the Website and Service to advertise or solicit anyone to buy or sell products or services or to make donations of any kind and only in conformance with our Community Guidelines.

2.6      You may not transfer or sell your Modern Phoenix Account and/or User Account to another party.

2.7      Without limiting any other remedies, Modern Phoenix may, without notice, and without refunding any fees, delay or immediately remove any User Content from the Website, warn the Modern Phoenix community of a User's actions, issue a warning to a User, temporarily suspend a User, temporarily or indefinitely suspend a User's account privileges, terminate a User's Account, prohibit access to the Website, and take technical and legal steps to keep a User off the Website and refuse to provide services to a User at the discretion of Modern Phoenix.  Modern Phoenix reserves the right to refuse service to anyone, for any reason, at any time.  In addition, Modern Phoenix may notify authorities or take any actions it deems appropriate, without notice to you, if Modern Phoenix suspects or determines, in its own discretion, that you or any User may have or there is a significant risk that you have: (i) failed to comply with any provision of this Agreement or any policies or rules established by Modern Phoenix; or (ii) engaged in actions relating to or in the course of using the Website or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Modern Phoenix, Modern Phoenix’s Users, or any other third parties or the website or Services.  After any termination or closing or suspension of a User Account or your Account, you understand and acknowledge that we will have no further obligation to provide the Services.  Upon termination, all licenses and other rights granted to you by this Agreement will immediately cease.  Modern Phoenix is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON THE WEBSITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU.  Furthermore, Modern Phoenix will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any third party.  Any suspension, termination or cancellation will not affect your obligations to Modern Phoenix under this Agreement (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

 

2.8      If you create an Account, you consent to the use of: (a) electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Website and/or Services.  Our Privacy Policy contains information about our policies and procedures regarding the collection, use and disclosure of information we receive from visitors and Users of the Website and/or Services.

3.         Use of the Service.

3.1      The Website and/or Services may change frequently, and their form and functionality may change without prior notice to you.  Modern Phoenix retains the right to create limits on and related to use of the Website and/or Services in its sole discretion at any time with or without notice.  Modern Phoenix may also impose limits on certain Website and/or Services or aspects of those Website and/or Services or restrict your access to parts or all of the Website and/or Services without notice or liability.  Modern Phoenix may change, suspend, or discontinue any or all of the Website and/or Services at any time, including the availability of any feature, database, User Content, or Modern Phoenix Content.  Modern Phoenix may also terminate Accounts at any time, in its sole discretion.

3.2      You agree not to do any of the following while accessing or using the Services:

(A)       Attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any server of Modern Phoenix, or to any of the services offered on or through the Service, by hacking, password "mining" or any other illegitimate means;
(B)       Access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of Modern Phoenix and/or its service providers;
(C)      Probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures;
(D)      Modify, obscure or interfere with any portion or functionality of any Services or the Website, including but not limited to links back to the Website or Services;
(E)       Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website or Services;
(G)      Attempt to access, search or meta-search the Website or Services with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Modern Phoenix or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Website or Services to determine how a website or web page ranks;
(F)       Collect or store personal data about other Users without their express permission;
(G)      Use any meta tags or other hidden text or metadata utilizing an Modern Phoenix name, trademark, URL or product name;
(H)      Use any “spider,” “robot,” “deep-link,” “data mine,” “page-scrape,” or other automatic device, program, methodology or algorithm, or any similar or equivalent manual or combination manual/automatic process, to acquire, access, copy or monitor any portion of the Service or any User Content or Modern Phoenix Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any User Content or Modern Phoenix Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service by Modern Phoenix;
(I)        Use the Website and/or Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers;
(J)       Interfere with, or disrupt, (or attempt to do so), the access of any User, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services;
(K)       Use any software, device, or routine that interferes or attempts to interfere with the proper working of the Website and/or Services or any transaction being conducted on the Website and/or Services, or with any other person's use of the Service;
(L)       Post advertisements or solicitations of business;
(M)      Use the Modern Phoenix Service and Website for any purpose other than to access the Modern Phoenix Website and Service as are offered by Modern Phoenix;
(N)      Circumvent, disable or otherwise interfere with security-related features of the Modern Phoenix Website or Services or features that prevent, limit or restrict use or copying of any materials or another User's User Content;
(O)      Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any materials.  For clarity, you may not assign, sell, or transfer your Account and/or any of your channels;
(P)       Bypass robot exclusion headers or other measures Modern Phoenix may use to prevent unauthorized access to the Modern Phoenix Website and/or Service;
(Q)      Breach the authentication or security measures on the Website and/or Service or any network connected to the Website and/or Service;
(R)      Trace, seek to trace, reverse look-up any information on any other user of or visitor to the Website and/or Service, or any other customer of Modern Phoenix, including any Modern Phoenix Account not owned by you, to its source, or exploit the Website and/or Service or any service or information related thereto made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information; or
(S)       Encourage or instruct any other individual to do any of the foregoing or to violate any term of this Agreement.

3.3      In addition, you agree that you will not do any of the following as determined in our sole discretion:

(A)       Post, distribute, upload, stream, display, or otherwise make available or transmit any data, text, message, video, audio, audiovisual, or computer file that we deem to be: (i) defamatory, libelous, abusive, harassing, insulting, threatening, or that could be deemed to be stalking; (ii) bigoted, hateful, or racially offensive; (iii) vulgar, obscene, or sexually explicit (language or images); or that (iv) encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them;
(B)       Post, distribute, upload, stream, display, or otherwise make available or transmit any data, text, message, video, audio, audiovisual, computer file, or other material that infringes and/or violates any right of a third party or any domestic or international law, rule, or regulation, including but not limited to: (i) copyright, patent, trademark, or other proprietary rights; (ii) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; (iii) any confidentiality obligation;
(C)      Post, distribute, upload, stream, display, or otherwise make available or transmit any software or other computer files that contain a virus or other harmful component;
(D)      Post, distribute, upload, stream, display, or otherwise make available, email or otherwise transmit (i) any User Content to which you do not have the lawful right to copy, transmit and display (including any User Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Content); (ii) any User Content for which you do not have the consent or permission of each identifiable person in the User Content to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Content) and such consent or permission is necessary; or (iii) any User Content that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);
(E)       Engage in antisocial, disruptive, or destructive acts, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet;
(F)       Delete any legal notices, disclaimers, or proprietary notices such as copyright or trademark symbols, or modify any logos that you do not own or have express permission to modify;
(G)      Post, distribute, upload, stream, display, email, or otherwise make available or transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation;
(H)      Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available on the Website or Services, servers or networks connected to the Website or Services or the technical delivery systems of Modern Phoenix's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Website or Services.
(I)        Impersonate any other individual or entity or pretend that you are, or that you represent, someone else;
(J)       Use the Website and/or Services or any User Content or Modern Phoenix Content for any purpose that is unlawful or prohibited by this Agreement;
(K)       Solicit the performance of any illegal activity or other activity which infringes the rights of Modern Phoenix or others;
(L)       Post, distribute, upload, stream, display, email, or otherwise make available or transmit any User Content that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Content that is unrelated to the immediate, aesthetic nature of the User Content;
(M)      Displaying, importing or exporting information off the Modern Phoenix service, using information on the Modern Phoenix service for purposes unrelated to the Modern Phoenix service, or improperly manipulating or using the ratings and comment system; or
(N)      Take any action that imposes or may impose (in Modern Phoenix's sole discretion) an unreasonable or disproportionately large load on Modern Phoenix's infrastructure.

 

3.5      You agree that the Website and Service and your activity on the Website and Service may be controlled and monitored by Modern Phoenix for any reason (and Modern Phoenix shall have no obligation to do so or to refrain from doing so), and Modern Phoenix reserves the right to enforce the terms of this Agreement with or without notice to you.

 

4.         Third Parties, Third Party Services.

 

4.1      The Website and Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Modern Phoenix (the “Third Party Services”).  Modern Phoenix does not endorse or assume any responsibility for any such third-party services, including without limitation, websites, information, materials, products, or services.  You acknowledge and agree that Modern Phoenix is not responsible or liable for the availability or accuracy of, and Modern Phoenix does not endorse, such websites or resources or the content, products, or services on or available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.  If you access any Third Party Service, or content from the Third Party Service, you do so at your own risk and you agree that Modern Phoenix will have no liability arising from your use of or access to any Third-Party Service. The Service may contain links to other independent third-party websites (“Links”).  You agree that the Links are provided only for your convenience and you therefore access them at your own risk.

4.2      You understand that the Services and the Website are available for your personal use only.  Your use of the Website and any Services that provide for or facilitate commercial transactions may be subject to additional terms and conditions.  Your interactions with organizations and/or individuals found on or through the Website and/or Services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals.  You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.  You agree that we will not be and are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.  If there is a dispute between you and any third party, you understand and agree that we are under no obligation to become involved.

4.3      If you have obligations to any third party, as a non limiting example, such as under the terms, conditions or policies of a SNS, you and not Modern Phoenix are responsible for your compliance with those obligations.  By allowing you to use the Website and/or Services, Modern Phoenix does not suggest, warrant or guaranty that your access to any third party service in connection with your use of the Website or Services is permitted by that third party service, nor does Modern Phoenix suggest, warrant or guaranty that your use complies with any laws or regulations that may apply to your use of any third party service. Modern Phoenix is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities while you use the Website and/or Services or third party service.

5.         Privacy & Interactions between Modern Phoenix Users.

5.1      Modern Phoenix does not control the content posted by you and does not have any obligation to monitor such content for any purpose.  You acknowledge that you are solely responsible for all content and material that you submit to Modern Phoenix, including without limitation, User Content.

5.2      You are solely responsible for your interactions (including any disputes) with other Modern Phoenix Users.  You understand that Modern Phoenix does not in any way screen Modern Phoenix Users.  You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Website and/or Services and disclosing personal information to other Modern Phoenix Users.  You agree to take reasonable precautions in all interactions with other Modern Phoenix Users, particularly if you decide to meet a Modern Phoenix User offline, or in person.  Your use of the Website, Services, Modern Phoenix Content, User Content, and any other information or other materials made available through the Website or Services is at your sole risk and discretion and Modern Phoenix hereby disclaims any and all liability to you or any third party relating thereto. 

5.3      Modern Phoenix reserves the right to contact Users, in compliance with applicable law, in order to evaluate compliance with the rules and policies in this Agreement.  You will cooperate fully with Modern Phoenix to investigate any suspected unlawful, fraudulent or improper activity.  You agree to allow, at any time and for any reason in the discretion of Modern Phoenix, Modern Phoenix representatives to access any password-protected portions of your Modern Phoenix Account.

5.4      Without limiting the terms of this Section, Modern Phoenix may in its sole discretion review and/or record chat exchanges and/or other communications engaged in via the Website or Services, in accordance with applicable law, in order to evaluate compliance with the rules and policies set forth in this Agreement or as otherwise technically necessary.

5.5      Any information you provide to Modern Phoenix or provide on or through the Service, including Registration Information, is subject to Modern Phoenix’s Privacy Policy which governs our collection and use of your information.  You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information.

6.         Modern Phoenix Content and User Content.

6.1      The Modern Phoenix Service permits its Users to create, post, distribute, upload, stream, display, archive, store, and/or otherwise make available or transmit content of their own creations, including written works posted on message boards, chat and blogs, and any other content (collectively, "User Content"). 

6.2      For purposes of this Agreement: (A) the term "Modern Phoenix Content" means a creative expression prepared, used, licensed or provided by Modern Phoenix and includes, without limitation, text, data, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, channels, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Services; (B) the term "User Content" is all Content that is posted, distributed, uploaded, streamed, emailed, displayed, archived, stored, or otherwise made available or transmitted or otherwise provided or transferred to the Services (including Registration Information) by a User, including, without limitation, by you and includes, without limitation, collectively, the text, data, graphics, images, photos and video files, audio files, audiovisual files, photographs, images, illustrations, animations and other content and information which you, Users, or our other third party licensors post, distribute, upload, stream, display, email, display, archive, store, or otherwise make available or transmit and submit to the Website and/or Services, including without limitation in broadcast chats, discussion groups, message boards and User created profile pages.  Modern Phoenix reserves the right to remove and permanently delete any User Content or Modern Phoenix Content from the Website without notice.  We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available any User Content, emails or other materials that are believed to violate this Agreement.

6.3      Subject to your compliance with this agreement, you may access and use the Website, Services, Modern Phoenix Content, and User Content for your own personal non-commercial use.  Any commercial use of the Website, Services, Modern Phoenix Content or User Content requires Modern Phoenix’s prior written approval (e.g., pursuant to additional or separate terms and conditions provided by Modern Phoenix).  You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, Services, Modern Phoenix Content, User Content or related products and services and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Website, Modern Phoenix Content, User Content (other than your User Content).  Notwithstanding you may distribute certain Modern Phoenix Content or User Content, solely where Modern Phoenix makes the means for distribution of such Modern Phoenix Content or User Content possible.  Modern Phoenix and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Website, Services, Modern Phoenix Content and the trademarks, service marks and logos contained therein other than your User Content.  Users retain ownership of all intellectual property rights in their User Content, and Modern Phoenix and/or third parties retain ownership of all intellectual property rights in all Modern Phoenix Content other than User Content.  You retain ownership of any intellectual property you post to the Website or Service.

6.4      When you post, distribute, upload, stream, display, submit, email, publish, link, transfer, archive, store, or otherwise transmit or submit any User Content to Modern Phoenix on the Website or to the Services, you grant Modern Phoenix a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, archive, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), index, and create derivative works, or any sharing, or re-sharing of, such User Content and otherwise exploit such User Content in any form, medium, device or technology now known or later developed, including without limitation on third party websites and platforms where the Services are syndicated.  For example, Modern Phoenix will have the right to insert, place or include all types of advertisements within or around your User Content, including without limitation to running or streaming pre-rolls, mid-rolls, post-rolls, overlays, banners, campaign and companion ads and any other type of advertising units in connection with your User Content.  If you wish to know more about his/her options regarding advertisements, you can visit the Network Advertising Initiative (NAI).  The NAI is a cooperative of online advertising companies who are committed to responsible practices and consumer protection.

You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Modern Phoenix.  You agree to execute and deliver such documents and provide all assistance reasonably requested by Modern Phoenix to give to Modern Phoenix the full benefit of the rights granted to Modern Phoenix by you.  The rights you grant in this license are for the purpose of including without limitation, operating the Website and/or Services in accordance with their functionality, improving the Website and/or Services, and allowing Modern Phoenix to develop new Services.  You grant to those members of the public to whom you have granted access (for content posted on public, shared and private areas of the Website and/or Services) or to the public (for content posted on public areas of the Service), a free, unlimited, worldwide, nonexclusive, perpetual, and irrevocable permission to: (A) publish your name, profile, or other information you supply in connection with your Account and User Content; and (B) grant these rights to others. 

6.5      MODERN PHOENIX HAS NO ABILITY TO CONTROL THE USER CONTENT THAT IS POSTED, DISTRIBUTED, UPLOADED, STREAMED, DISPLAYED, STORED, ARCHIVED, OR OTHERWISE MAKE AVAILABLE OR TRANSMITTED USING THE WEBSITE AND/OR SERVICES AND DOES NOT HAVE ANY OBLIGATION TO MONITOR SUCH USER CONTENT FOR ANY PURPOSE AND, AS A RESULT, IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, LEGALITY, APPROPRIATENESS, OR APPLICABILITY OF THE USER CONTENT OR ANYTHING SAID, DEPICTED OR WRITTEN BY USERS OR VISITORS, INCLUDING WITHOUT LIMITATION ANY INFORMATION OBTAINED BY USING THE WEBSITE. MODERN PHOENIX DOES NOT ENDORSE ANY USER CONTENT OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST MODERN PHOENIX WITH RESPECT THERETO.  YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST MODERN PHOENIX WITH RESPECT THERETO AND AGREE TO INDEMNIFY AND HOLD MODERN PHOENIX, ITS OWNERS/OPERATORS, AFFILIATES, SUPPLIERS, AND/OR LICENSORS HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR CONTENT AND USER CONTENT AND USE OF THE MODERN PHOENIX SERVICE.  Modern Phoenix will have no responsibility or liability to you or any third party as a result of your activities and you are solely responsible for any activities you do in connection with or via the Website or Services. 

6.7      YOU ALSO AGREE THAT THIS AGREEMENT INCLUDES THE RIGHT AND LICENSE FOR MODERN PHOENIX TO MAKE ALL PUBLICLY-POSTED USER CONTENT AVAILABLE TO THIRD PARTIES SELECTED BY MODERN PHOENIX, SO THAT THOSE THIRD PARTIES CAN DISTRIBUTE AND/OR ANALYZE SUCH USER CONTENT ON OTHER MEDIA AND SERVICES.  NOTE ALSO THAT THIS LICENSE TO YOUR USER CONTENT CONTINUES EVEN IF YOU STOP USING THE WEBSITE AND/OR SERVICES, PRIMARILY BECAUSE OF THE SOCIAL NATURE OF USER CONTENT SHARED THROUGH THE WEBSITE AND/OR SERVICES - WHEN YOU POST SOMETHING PUBLICLY, OTHERS MAY CHOOSE TO COMMENT ON IT, MAKING YOUR USER CONTENT PART OF A SOCIAL CONVERSATION THAT CANNOT LATER BE ERASED OR DELETED.

6.8      You understand that we may need to make copies, change the format, transcode, or otherwise process User Content, to: (A) store and retrieve User Content; (B) make the User Content available to you and those members of the public to whom you have granted access; (C) conform to connecting networks’ technical requirements; or (D) conform to the limitations and terms of this Agreement.  We will not pay you for your User Content.  We may refuse to publish your User Content, and we may edit, revise modify or remove your User Content at any time.  In addition, we may otherwise exploit such User Content, in whole or in part, in all languages and in all media formats and channels now known or hereafter devised for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade, or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.  You also hereby waive any so-called “moral rights” in the User Content.

6.9      Upon your deletion of particular pieces of User Content from the Website and/or Services, Modern Phoenix shall make reasonable efforts to make such User Content inaccessible and cease use of it and on termination of your Account, your User Content will continued to be stored on our Website and/or Services but not available publicly or privately; however, you acknowledge and agree that: (a) caching of, copies of, or references to the User Content may not be immediately removed; (b) such removed User Content may persist in backups (not available to others) for a reasonable period of time; and (c) such removed User Content may be available (and stored or indexed on our servers) through the accounts of other Users, such as because of a User sharing or re-sharing of your User Content.

6.10    As a User of the Website and/or Services, Modern Phoenix grants you a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, share, and re-share User Content solely in connection with your use of, and in accordance with the functionality and restrictions of, the Website and/or Services.

7.         User Content Rights and License. 

7.1      You retain all of your ownership rights of your User Content.  However, by submitting User Content to Modern Phoenix, you hereby:

A.         Grant Modern Phoenix a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sub-licensable through multiple tiers and freely transferable license to display, perform, use, reproduce, distribute, publish, create derivative works of, display, perform, sell, edit, and otherwise exploit your User Content solely in connection with the Modern Phoenix Service and Modern Phoenix's (and its successor's) business, including without limitation for promoting and redistributing your User Content or part of or all of the Modern Phoenix Service (and derivative works thereof) in any media formats, media channels or medium now or hereafter in existence.  For the avoidance of doubt, the foregoing license includes, but is not limited to, the right to reproduce, distribute, display, perform, make derivative works from or otherwise exploit your User Content in proximity with or in connection with any third party content in perpetuity;
B.        Grant each User of the Modern Phoenix Service a non-exclusive license to access your User Content through the Modern Phoenix Website and/or Services, and to use, reproduce, distribute, publish, prepare derivative works of, display and perform such User Content solely as permitted through the functionality of the Modern Phoenix Service  and/or Website and under this Agreement;
C.        You are solely responsible for all of your User Content and you hereby recognize and affirm that the Modern Phoenix Website and/or Services is merely providing you the means to produce and distribute your User Content.  Accordingly, you shall be solely responsible for your own User Content and the consequences of posting or publishing it;

7.2      You are solely responsible for all of your User Content and you hereby recognize and affirm that the Modern Phoenix Website and/or Services is merely providing you the means to produce and distribute your User Content.  Accordingly, you shall be solely responsible for your own User Content and the consequences of posting, distributing, uploading, streaming, displaying, or otherwise making available or transmitting it. You hereby affirm, agree, acknowledge, represent, and warrant that:

A.         You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Modern Phoenix and Modern Phoenix's Users to use and distribute Your User Content as necessary to exercise the rights and licenses granted by You in this Agreement and in the manner contemplated by Modern Phoenix and this Agreement;
B.        Your User Content does 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 or (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity; and
C.        Your User Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Modern Phoenix Website and/or Services
D.        Your User Content does not include any advertisements, promotions, or solicitations of business.

E.        Your User Content does not and will not violate any of the prohibited uses set forth in this Agreement.

7.3      Violators of third-party rights may be subject to criminal and civil liability.  Modern Phoenix reserves all rights and remedies against any Users who violate this Agreement.  Modern Phoenix reserves the right to discontinue any aspect of the Modern Phoenix Service at any time, including the right to discontinue the display of any User Content.  For the avoidance of doubt, you are not entitled to any compensation from Modern Phoenix for any or directly or indirectly relating to User Content for any reason.

8.         Availability of Website and/or Services.  The Modern Phoenix Website and Service is provided to you only on an "as-available" basis and Modern Phoenix does not guarantee that the Modern Phoenix Service will be will be uninterrupted or error free.  

9.         Limitation of Liability, No Warranties, Release, Remedies Limited, and Indemnity.

9.1      Modern Phoenix is not responsible for any incorrect or inaccurate Modern Phoenix Content and/or User Content published on the Website or in connection with the Services.  Modern Phoenix is not responsible for the conduct, whether online or offline, of any User of the Website.  Modern Phoenix takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service.  You are solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your and other users’ online distribution and publication of your and their User Content.  You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.  The Website and the Services may be temporarily unavailable from time to time for maintenance or other reasons.  Modern Phoenix assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Website or the Services.  Modern Phoenix is not responsible for any problems or technical malfunction of any telephone, cable, or satellite network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any Website, including injury or damage to any person's computer related to or resulting from participating or downloading materials in connection with the Website or the Services.  Under no circumstances will Modern Phoenix be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Services, the Website or any Modern Phoenix Content and/or User Content published on the Website.

9.2      THE WEBSITE, THE SERVICES, MODERN PHOENIX CONTENT, AND USER CONTENT ARE PROVIDED “AS-IS” AND AT YOUR SOLE RISK, AND MODERN PHOENIX DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR NON-INFRINGEMENT.  MODERN PHOENIX CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEBSITE AND/OR THE SERVICES.  IN ADDITION, MODERN PHOENIX DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING.  CONSEQUENTLY MODERN PHOENIX WILL IN NO WAY BE RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SERVICE.  AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.  NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM MODERN PHOENIX SHALL CREATE ANY WARRANTY ON BEHALF OF MODERN PHOENIX IN THIS REGARD.

9.3      TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MODERN PHOENIX, ITS DIRECTORS, OFFICERS, MANAGERS, MEMBERS EMPLOYEES, AFFILIATES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF (A) THIS AGREEMENT, (B) THE USE OF OR INABILITY TO USE THE SERVICE (INCLUDING BUT NOT LIMITED TO THE MODERN PHOENIX CONTENT), AND (C) DISPUTES BETWEEN USERS, INCLUDING THOSE BETWEEN YOU AND OTHER USERS, THIRD PARTY SERVICES, AND WEBSITES, INCLUDING CONTENT FOUND ON SUCH THIRD PARTY WEBSITES AND SERVICES, DISPUTES CONCERNING ANY USE OF OR ACTION TAKEN USING YOUR ACCOUNT BY YOU OR A THIRD PARTY, CLAIMS RELATING TO THE UNAUTHORIZED ACCESS TO ANY DATA COMMUNICATIONS OR CONTENT STORED UNDER OR RELATED TO YOUR ACCOUNT OR LINKED FROM YOUR ACCOUNT, INCLUDING UNAUTHORIZED USE OR ALTERATION OF SUCH COMMUNICATIONS OR YOUR USER CONTENT, EVEN IF YOU HAVE ADVISED MODERN PHOENIX ABOUT THE POSSIBILITY OF SUCH LOSS, AND INCLUDING ANY DAMAGES RESULTING THEREFROM.  YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. 

9.4      IN NO EVENT WILL MODERN PHOENIX’S AGGREGATE LIABILITY, OR THAT OF ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, USER CONTENT OR MODERN PHOENIX CONTENT EXCEED TEN DOLLARS ($10.00).  THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODERN PHOENIX AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
If you are a California resident, you waive California Civil Code A§1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

10. Indemnification.

10.1    You agree to indemnify, defend and hold harmless Modern Phoenix, its officers, directors, employees, members, managers, consultants, distributors, affiliates, agents, licensors, suppliers, successors, assigns, and their past and present officers, directors and employees, representatives and agents from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of:

A.         Any claim due to or arising out of your violation of this Agreement, including but not limited to a claim arising out of a breach of your representations or warranties made hereunder;
B.        Your use or misuse of or access to the Modern Phoenix Service;
C.        Your violation of any law, regulation or third party right, including without limitation any copyright, property, or privacy right; or
D.        Any claim that you or your User Content caused damage to a third party.
Modern Phoenix reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Modern Phoenix, and you agree to cooperate with Modern Phoenix's defense of these claims.

10.2    YOU HEREBY AGREE NOT TO SUE, ASSIST IN OR BE A VOLUNTARY PARTY TO ASSIST IN OR BE A VOLUNTARY PARTY TO, EXCEPT AS REQUIRED BY LAW, ANY ACTION, SUIT, OR PROCEEDING AGAINST SHOP STARTUPS FOR ANY CLAIMS, ACTIONS, SUITS, DAMAGES, LIABILITY, LOSSES OR EXPENSES OF WHATEVER KIND OR HOWEVER ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE OR THE SERVICES.

10.3    The Website and Service is controlled and operated from its facilities in the United States.  Modern Phoenix makes no representations that the Website and Service is appropriate or available for use in other locations.  Those who access or use the Website and Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable national, state, local or other laws, statutes, directives, rules, regulations, and all interpretations or orders of any government, administrative or regulatory authority or court, including but not limited to those related to export and import of software, technical information or services.  You may not use the Website and Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.  Unless otherwise explicitly stated, all materials found on the Website and Service are solely directed to individuals, companies, or other entities located in the United States.

11.      Termination.

11.1    You may close your Account at any time by “deactivating” it by emailing us at support@ModernPhoenix.net.  You may reactivate your account at any time by logging in to Modern Phoenix using your Registration Information.  You may terminate your Modern Phoenix Account at any time and for any reason by contacting us at support@ModernPhoenix.net.  Upon any termination by a User, the related Account will no longer be accessible.

11.2    You agree that your failure to abide by this Agreement is a material breach of this Agreement for which Modern Phoenix may pursue all rights and remedies it has pursuant to this Agreement, and any other rights, remedies and causes of action against you it may have at law or in equity.  Without limiting other remedies, Modern Phoenix may immediately terminate or suspend your access to the Website and/or Services and remove any material (including User Content) from the Website or our servers, in the event that you breach this Agreement.  Notwithstanding the foregoing, we also reserve the right to terminate the Website, Services or your access thereto at any time and for any reason. In addition, Modern Phoenix may notify authorities or take any actions it deems appropriate, without notice to you, if Modern Phoenix suspects or determines, in its own discretion, that you may have or there is a significant risk that you have: (A) failed to comply with any provision of this Agreement or any policies or rules established by Modern Phoenix; or (B) engaged in actions relating to or in the course of using the Website and/or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Modern Phoenix Users, Modern Phoenix or any other third parties or the Website and/or Services; or (C) you infringe any third party intellectual property rights; or (D) we are unable to verify or authenticate any information you provide to us; and/or (E) upon any activity whatsoever which we, in our sole discretion, determine is a violation.

11.3    You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice and will cause irreparable harm to Modern Phoenix, for which monetary damages would be inadequate, and you consent to Modern Phoenix obtaining any injunctive or equitable relief that Modern Phoenix deems necessary or appropriate in such circumstances.  You agree that these equitable remedies are in addition to any other remedies Modern Phoenix may have at law or in equity.  You agree that Modern Phoenix may, in its sole discretion and without prior notice, permanently terminate your access to the Service for violations of this Agreement or other agreements or guidelines which may be associated with your use of the Website and Service or as Modern Phoenix deems necessary in its sole discretion. 

11.4    You acknowledge and agree that Modern Phoenix has the right to takes the steps that Modern Phoenix believes are reasonably necessary or appropriate to enforce and/or verify your compliance with any and all parts of this Agreement (including but not limited to Modern Phoenix's right to cooperate with any legal process relating to your use of the Website and/or Services, and/or a third-party claim that your use of the Website and/or Services is unlawful and/or infringes such third party's rights).

11.5    You acknowledge and agree that Modern Phoenix may preserve any transmittal or communication by you with Modern Phoenix through the Service or any service offered on or through the Website and/or Services.  You further acknowledge and agree that Modern Phoenix has the right at all times to disclose any information that Modern Phoenix deems necessary to comply with any applicable law, regulation, legal process or governmental request.  You agree that Modern Phoenix also may disclose your information when Modern Phoenix determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.  You agree that Modern Phoenix may disclose any information it has about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Website and/or Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) to the rights or property of Modern Phoenix, or the rights or property of visitors to or users of the Service, including the customers of Modern Phoenix, or in accordance with applicable law.  You agree that Modern Phoenix has the right, without liability to you, to disclose any Registration Information and/or Account information to law enforcement authorities, government officials and/or a third party, as Modern Phoenix believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Modern Phoenix's right to cooperate with any laws and legal process relating to your use of the Service and/or products, and/or a third-party claim that your use of the Website, Services, and/or products is unlawful and/or infringes such third party's rights). 

11.6    After any deactivation and/or termination, you understand and acknowledge that we will have no further obligation to provide the Services.  Upon termination, all licenses and other rights granted to you by this Agreement will immediately cease.  Modern Phoenix is not liable to you or any third party for deactivation and/or termination of the Services or deactivation and/or termination of your use of the Services.  UPON ANY DEACTIVATION AND/OR TERMINATION, ANY INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON THE WEBSITE AND/OR SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU.  Furthermore, Modern Phoenix will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any third party.

11.7    If Modern Phoenix takes any legal action against you as a result of your violation of this Agreement, you agree that Modern Phoenix will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Modern Phoenix.  You agree that Modern Phoenix will not be liable to you or to any third party for termination of your access to the Website and Service as a result of any violation of this Agreement.

11.8    Upon deactivation and/or of your access to or ability to use the Website and/or Services, your right to use or access that Website and/or Services will immediately cease.  All provisions of this Agreement which by their nature should survive termination/deactivation shall survive termination/deactivation, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.  Deactivation and/or termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to such deactivation or termination or limit any liability which you otherwise may have to Modern Phoenix or any third party.

12.      Legal Disputes, Governing Law and Mandatory Arbitration.

For claims against Modern Phoenix, LLC:

12.1    For any dispute you have with Modern Phoenix, you agree to first contact us at support@ModernPhoenix.net and attempt to resolve the dispute with us informally.  In the unlikely event that we have not been able to resolve a dispute with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”), using the English language in accordance with and under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.  Unless you and we agree otherwise, you agree that the arbitration will be conducted in Phoenix, Arizona USA.  Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules.  The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Service.  ALL CLAIMS MUST BE BROUGHT IN THE USER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.  YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MODERN PHOENIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.  You and Modern Phoenix agree that any cause of action arising out of or related to the Website and/or any Services or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

12.2    If Modern Phoenix takes any legal action against you as a result of your violation of this Agreement, you agree that Modern Phoenix will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Modern Phoenix.  You agree that Modern Phoenix will not be liable to you or to any third party for termination of your access to the Website and/or Services as a result of any violation of this Agreement.

12.3    For all purposes of this Agreement, you agree that: (A) the Website and/or Services shall be deemed solely based in Phoenix, Arizona; and (B) the Website and/or Services shall be deemed a passive one that does not give rise to personal jurisdiction over Modern Phoenix, or http://ModernPhoenix.net, either specific or general, in jurisdictions other than Arizona.  This Agreement shall be governed by the internal substantive laws of the State of Arizona, without respect to its conflict of laws principles.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  You consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the District of Arizona in Phoenix.  Use of the Website and/or Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this Section. 

For claims made against another User:

12.4    Your interactions with organizations and/or individuals found on or through the Website and/or Services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the said organizations and/or individuals.  You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.  YOU AGREE THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS.  In the event that you have a dispute with one or more visitors or Users of the Website and/or Service for any reason, you hereby release Modern Phoenix (and its officers, managers, members. Affiliates, consultants, agents, directors, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and/or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes and/or our the Website and/or Services. 

If you are a California resident, you hereby acknowledge and represent that you understand the full nature, extent and import of California Civil Code §1542 and of this Agreement.  Accordingly, you acknowledge and agree that you waive and relinquish any and all rights or benefits that you have, had, or may have had under California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Modern Phoenix encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.

13.      Notices and Communications with Users.

13.1    We have the right to send you certain information in connection with the Website and/or Services and have the right to send you certain additional information.  There may be other information regarding the Website and/or Services that the law requires us to send you.  We may send you this (and any other) information in electronic form via e-mail to the e-mail address you provide to us.  As part of the Website and/or Services, you may occasionally receive email and other communications from us, such as administrative communications relating to your Account (e.g., for purposes of Account recovery or password reset).  These communications are considered part of the Services and your Account, which you may not be able to opt-out from receiving.  You can opt-out of most communications from us, such as new follower emails; please email support@ModernPhoenix.net to opt-out.  Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail.  As long as you access and use the Service, you agree that you will have, or have access to, the necessary software and hardware to receive such notices. 

13.2    When you use any Modern Phoenix Service, or send e-mails to us, you are communicating with us electronically.  You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  You have the right to withdraw this consent, but if you do, we may cancel your Account.  You agree that we may provide required information to you: (A) by e-mail at the e-mail address you provided to us; (B) by access to a website that will be designated in an e-mail notice sent to you at the time the information is available.  Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail.  As long as you access and use the Website and/or Services, you agree that you will have, or have access to, the necessary software and hardware to receive such notices.  If you do not consent to receive any notices electronically, you must stop using the Website and/or Services. 

13.3    Except as explicitly stated otherwise, any notices from you to us shall be in writing and shall be deemed effective upon receipt, when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to Connie J. Mableson, PLLC, Modern Phoenix, LLC, 1938 E. Osborn Road, Phoenix, AZ 85020 Attn: Legal Department.

13.4    Except as explicitly stated otherwise, any notices from us to you shall be in writing and shall be deemed effective upon sending to the email address you provide to Modern Phoenix (either during the registration process or when your email address changes).  Notice shall be deemed given 24 hours after email is sent, unless we are notified by you that the email address is invalid and you provide us with a working alternative email address.   

14.      Miscellaneous.

14.1    You agree that Modern Phoenix may, from time to time, present programming fixes, updates and upgrades to you, including version updates to the Website and/or Services.  You acknowledge that your failure to incorporate such updates may affect your ability to use the Website and/or Services.

14.2    Any software or technology obtained from Modern Phoenix through the Service originates in the United States, and is subject to United States export laws and regulations.  Such software and technology may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, software and technology obtained from Modern Phoenix may be subject to the import and export laws of other countries.  It is your responsibility to comply with all U.S. and foreign export and import laws and regulations.

14.3    This Agreement, together with the Privacy Policy and Community Guidelines, as modified from time to time, constitutes the entire agreement between you and Modern Phoenix  with respect to the subject matter hereof.  This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof and constitutes the entire and exclusive agreement between the parties.  The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.  You acknowledge and agree that you and Modern Phoenix are independent contractors, and have no agency, partnership, joint venture, employer-employee, franchisor-franchisee or other relationship with each other.  You further acknowledge and agree that the relationship between Modern Phoenix and every other user of the Service is that of independent contractors, and that Modern Phoenix has no agency, partnership, joint venture, employer-employee, franchisor-franchisee or other relationship with any other user of the Service.  If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable, or sublicensable by you except with Modern Phoenix’s prior written consent and any attempted assignment by you shall be null and void.  Modern Phoenix may assign this Agreement in whole or in part at any time without your consent.  

14.4    We, ourselves or through our direct or indirect affiliates, parents, subsidiaries, related companies and/or licensors, shall retain all rights, title and interest relating to or residing in and to the Website, Services, Modern Phoenix Content or content other than User Content, all data in connection therewith, and all copies thereof, including without limitation, any titles, computer code, objects, names, stories, dialog, catch phrases, concepts, artwork, animations, sounds, musical compositions and recordings, audio-visual effects, methods of operation, moral rights, and any related documentation and user manuals (collectively referred to as the “Rights”).  Except for the revocable, limited licenses expressly granted herein, you acknowledge and agree that you have not and will not acquire or obtain any rights, including any right of exploitation, of any kind in or to Rights listed above, and/or any compilation or copyrightable arrangement thereof, and that all such Rights are exclusively reserved to and owned by Modern Phoenix.

14.5    The Website and Service may, from time to time, contain sweepstakes and other contests and promotions that require you to provide Modern Phoenix with material or information about yourself.  Those sweepstakes, contests or promotions may be governed by a separate set of rules that may have eligibility requirements.  You acknowledge and agree that it is your responsibility to read such rules to determine whether your participation, registration and/or entry are valid.  You agree to read and comply with such rules before entering any sweepstakes, contest or promotion provided on the Website and/or Services.

14.6    If you have questions about this Agreement or would like to request a copy of this Agreement or any other records relating to this Agreement of your use of the Website and/or Services, please contact Modern Phoenix at support@ModernPhoenix.net or by sending a written request to Modern Phoenix, LLC, at 4624 N. 11th Place, Phoenix AZ 85014.  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.

14.7    If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect.

14.8    You acknowledge and agree that any failure of Modern Phoenix to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Modern Phoenix of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between Modern Phoenix and you or any other party be deemed to modify any provision of this Agreement.

14.9    Sections 1, 2, 3, 5, 6, 7, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement.

14.10  Modern Phoenix, and other Modern Phoenix graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Modern Phoenix, LLC in the U.S. and/or other countries.  Modern Phoenix’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.  Trademarks, service marks, graphics, logos and other commercial identifiers used in connection with the Service are the trademarks of their respective owners.  You are granted no right or license with respect to any of these trademarks or any use of such trademarks.

 

Copyright © 2014 Modern Phoenix, LLC.  Modern Phoenix™ is a trademark of Modern Phoenix, LLC.  All Rights Reserved.

Effective Date: 10/01/2014