ELFYOURSELF TERMS OF SERVICE
EFFECTIVE: November 9, 2012
IMPORTANT! PLEASE READ THESE ELFYOURSELF TERMS OF SERVICE ("AGREEMENT") CAREFULLY BEFORE USING THE ELF SITE (DEFINED BELOW) AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. This Agreement only applies to http://www.elfyourself.com, the services, features and content available on http://www.elfyourself.com and any feature, widget or application that posts a link to this Agreement (collectively, the "Elf Site"), however accessed, and does not apply to any other web site or unrelated activities by OfficeMax Incorporated (“OfficeMax," "we," "us" or "our"). The Elf Site is brought to you by OfficeMax.
You agree to this Agreement by accessing or using the Elf Site, registering for services offered on the Elf Site, or by accepting, uploading, submitting or downloading any information or content from or to the Elf Site. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THIS AGREEMENT, DO NOT USE THE ELF SITE. In some instances, both this Agreement and separate terms of service or other conditions may apply to a service or product offered via the Elf Site ("Additional Terms"). To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
1. OWNERSHIP & LICENSE OF ELF SITE MATERIALS:
Unless otherwise explicitly specified, you agree that all Content (defined below) is, as between you and OfficeMax, owned or licensed by OfficeMax. "Content" includes, without limitation: audio; visual; audiovisual; text; and other elements and materials; graphics; layout; instructions, images; designs; advertising copy; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the "look and feel" of the Elf Site; the compilation, assembly and arrangement of the Elf Site; and all other materials related to the Elf Site in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise. You agree that your right to use the Elf Site and Content, as set forth in this Agreement, is subject to using it for personal, noncommercial use only and that such use will not in any way transfer or convey any ownership rights or other proprietary interests therein to you.
We may terminate your access to the Elf Site at any time, for any reason, effective immediately, including, without limitation, by sending notice to you via the information you provide in your registration or such other information as you may subsequently provide to us. If we terminate your access due to a breach of this Agreement, you will not be entitled to the refund of any unused portion of subscription fees (if any). If your access to the Elf Site is terminated, all rights granted to you under this Agreement will cease immediately, and you agree that you will: immediately discontinue use of the Elf Sites; destroy all materials obtained from the Elf Site and all related documentation; and if applicable, pay any amounts owed for use of the Elf Site or Content in full within thirty (30) days from the date of such termination and continue to pay any other amounts owed under this Agreement. This Agreement will remain in full force and effect even after your account with or access to the Elf Site is terminated, as the terms hereof are not conditioned upon membership. You acknowledge that OfficeMax reserves the right to charge for any or all of the Elf Site and has the right to terminate your account or access to the Elf Site should you breach this Agreement or fail to pay for any fee-based services, as required.
3. ELIGIBILITY, MEMBERSHIP AND REGISTRATION:
Participation on the Elf Site is void where prohibited by law. By registering on the Elf Site, you represent and warrant that all registration information submitted is truthful and accurate and you agree to maintain the accuracy of such information. By participating on the Elf Site, you represent and warrant that your use of the Elf Site will not violate any applicable law or regulation. Certain areas or services within the Elf Site may require registration or may otherwise ask you to provide information to participate. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Content or User Materials (defined below) or participate in certain features of the Elf Site. When you provide information to the Elf Site, you agree to provide only true, accurate, current and complete information. You are solely and fully responsible for maintaining the confidentiality of any username and password and restricting access to your computer (or other internet access device, as applicable), and will be solely and fully responsible for all activities that occur using that username and password to access the Elf Site. You agree to: immediately notify OfficeMax of any unauthorized use of your username and password or any other breach of security and log off from account at the end of each session. OfficeMax cannot and will not be liable for any loss or damage arising from your use if registration on the Elf Site.
4. USER CONDUCT & REPRESENTATIONS AND WARRANTIES:
In connection with your use of the Elf Site, you agree to act responsibly and in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to: (a) violate any applicable law or regulation, (b) submit any materials that conflict with any of your representations and warranties set forth in this Agreement, (c) infringe, misappropriate or violate the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights, (d) use the content and information available through the Elf Site for any unauthorized purpose, (e) interfere with or damage the Elf Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, (f) use the Elf Site to transmit, distribute, post or submit photographs of others or voice or sound recordings of persons other than yourself, except where you have obtained express permission from such other person or entity in connection with any of the foregoing, (g) use the Elf Site to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, personal contact information or account numbers, (h) use the Elf Site to transmit, distribute, post or submit any defamatory or otherwise illegal materials of any kind; (i) use the Elf Site in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements, (j) "stalk" or harass any other user of the Elf Site, (k) use the Elf Site for any commercial purpose whatsoever (including, without limitation, to advertise, market, promote, sell or otherwise exploit any product or service), (m) sell or otherwise transfer any user information (e.g., user profiles) or other user's User Materials), or (n) assist any third party in doing any of the foregoing.
You represent and warrant that:
OfficeMax may terminate any users' access to the Elf Site who are violators of the foregoing, including, without limitation, those who are infringers of third-party intellectual property rights, and may prohibit them from creating new accounts on the Elf Site.
In addition to the foregoing, the User Materials you submit MUST NOT include any nudity, violence, or offensive subject matter (as determined by OfficeMax in its sole discretion).
5. OWNERSHIP OF USER MATERIALS:
You will at all times retain all right, title and interest in and to the User Materials you provide under this Agreement (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to OfficeMax under this Agreement.
6. LICENSE TO OFFICEMAX:
As used in this Agreement, the term "User Materials" means your content, photographs, voice recordings, videos, audio, comments, written work, name(s), trademarks, trade names, likenesses, biographical materials, artwork, liner notes, and other graphical or textual materials that you upload, submit or otherwise provide to OfficeMax via the Elf Site, and any and all computer-generated images or other artwork or images that you submit to OfficeMax via the Elf Site.
You hereby grant to OfficeMax and its licensees and assigns a worldwide, royalty-free, non-exclusive license to do the following things in perpetuity:
You hereby disclaim any and all right, title, or interest in any and all material with which User Materials may be combined or into which all or any portion of User Materials may be incorporated.
You acknowledge and agree that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all content, elements and materials created by or for OfficeMax incorporating all or any portion of the User Materials will be exclusively owned and controlled, as between you and OfficeMax, by OfficeMax. You represent and warrant that by submitting User Materials to the Elf Site that the User Material is wholly owned or licensed or controlled by you.
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, OfficeMax does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted.
7. NAME AND LIKENESS:
You hereby grant to OfficeMax and its licensees and assigns:
8. THIRD PARTY LINKS AND CONTENT:
You may choose, at your sole and absolute discretion and risk, to use applications that connect the Elf Site or your profile on the Elf SIte with a third party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Elf Site profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information about you, you are consenting to the information about you or your account (if any) being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if OfficeMax has not provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the OfficeMax harmless for that activity. You must read all log-in boxes and other pop-up boxes closely for notices about sharing your information with, through or by any other means identified on an Application.
10. LINKING POLICY:
OfficeMax grants you the revocable permission to link to the Elf Site; provided, however, that your website, or any third party web sites that link to the Elf Site: (a) may only link to the applicable Elf Site's home page unless we have provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (c) must not imply that OfficeMax or the Elf Site is endorsing or sponsoring it or its products, unless we have given our prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in OfficeMax's sole opinion, harm OfficeMax or its products or services; (e) must not use OfficeMax's trademarks without the prior written permission of OfficeMax; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion), and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to this Agreement. By linking to the Elf Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in this Agreement, we reserve the right to prohibit linking to the Elf Site for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
11. TERMS OF SALE:
To the extent you can purchase a good or service through the Elf Site, the purchase transaction will be wholly processed and fulfilled by PayPal. All sales are final.
12. COLLABORATIVE CONTENT AND VIRAL DISTRIBUTION:
Certain functionality on the Elf Site permits collaborative creation of content by users (“Collaborative Content”). Your contributions to the Collaborative Content are User Materials except that the resulting content is subject, in addition to all other applicable terms, to the following additional provisions as a condition to your use of any such functionality and the use of Content, if any, made available for use in connection with the Collaborative Content on the Elf Site:
If expressly permitted on the Elf Site, OfficeMax grants you a limited, revocable permission to engage in Viral Distribution of Collaborative Content as may from time to time be made available on the Elf Site for such purpose. “Viral Distribution” means, for non-commercial purposes only: (a) sending Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery; (b) reproducing copies of Collaborative Content for personal use; and (c) posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content.
You agree to include, and not remove or alter OfficeMax trademarks, copyrights or other proprietary rights notices specified on the Elf Site and within e-mail page(s), when displaying any Collaborative Content, and you agree to comply with usage guidelines that may be provided by OfficeMax from time to time. WE DO NOT REWARD YOU FOR VIRAL DISTRIBUTION AND YOU AGREE NOT TO ENGAGE IN SPAMMING OR OTHER UNLAWFUL OR CONTROVERSIAL BEHAVIOR IN CONNECTION THEREWITH.
13. PROPRIETARY RIGHTS:
You agree that all content and materials available on the Elf Site are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by OfficeMax, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from materials or content available on the Elf Site, or otherwise use any content, copyrights, trademarks or intellectual property of OfficeMax in any way without OfficeMax's prior, written consent. You also agree not to retrieve data or other content or any materials from the Elf Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. You agree not to use any of OfficeMax's content, names or trademarks as metatags on other web sites. You agree not to display any of the Elf Site in a frame (or any of our content via in-line links) without OfficeMax’s express written permission.
You acknowledge and agree that the name OfficeMax, the OfficeMax logos, and the layout and design of the Elf Site, among other marks that may appear on the Elf Site are, as between you and OfficeMax, trademarks of OfficeMax (the "OfficeMax Marks"). Other trademarks and service marks on the Elf Site may be the property of the advertisers, content partners and/or providers, or other third parties. You may not use any of OfficeMax Marks without OfficeMax’s prior written permission, and you may not use any third-party marks without the third party's prior written permission.
14. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RELATED COMPLAINTS:
Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Elf Sites infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), OfficeMax has a designated agent for receiving notices of copyright infringement and OfficeMax follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide OfficeMax's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
OfficeMax's copyright agent for notice of claims of copyright, trademark, or other intellectual property infringement on or regarding the Elf Site can be reached as follows:
Copyright Notices c/o General Counsel
263 Shuman Blvd.
Naperville, IL 60563
T: 630 864 5070
F: 630 864 4527
NOTE: This contact information is for inquiries regarding potential copyright, trademark, or other intellectual property infringement on the Elf Site only. No other correspondence to this contact information will be addressed.
We have a policy of terminating users who (in our reasonable discretion) are repeat infringers.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
OfficeMax will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.15. SWEEPSTAKES, CONTESTS, AND PROMOTIONS
Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the Elf Site may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User Materials, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).
16. USER DISPUTES:
You are solely responsible for your interactions with other users of the Elf Site, whether online or offline. You are solely responsible for all content (including, without limitation, User Materials) you upload to, publish or display through the Elf Site, including any email messages. You agree that OfficeMax will not be responsible for any damage or harm resulting from your interactions with other Elf Site users. We reserve the right, but will have no obligation, to monitor interactions between users and take any action in good faith to restrict access to or the availability of any material that OfficeMax or another user may consider to be obscene, lewd, defamatory, lascivious, filthy, offensive, violent, harassing or otherwise objectionable in the sole discretion of OfficeMax.
17. ITEMS AVAILABLE FOR DOWNLOAD AND THIRD PARTY PAYMENTS:
To the extent that we make any applications, software or functionalities available for download or use from or through the Elf Site (the "Downloadable Items"), such Downloadable Items are the copyrighted work (as between you and OfficeMax), of OfficeMax or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. Note that if you install certain applications that may be available via the Elf Site, you consent to the download of software to your computer and accept this Agreement and any Additional Terms related to such application. With respect to any User Materials that you download from or through the Elf Site, you are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the User Materials. You also agree that any Downloadable Items you obtain from the Elf Site (whether for free or for a fee) are only provided to you for your personal, non-commercial use and are not meant for you to further distribute for commercial purposes.18. MOBILE
The Elf Site may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to upload content to the Elf Site, receive messages from the Elf Site, download applications to your mobile phone or access the Elf Site features (collectively, the "Mobile Features"). We may charge for Mobile Features. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. The instructions will typically require you to text "STOP" to the applicable shortcode for the Mobile Feature.
If you have registered for Mobile Features connected to your mobile telephone number, you agree to notify OfficeMax of any changes to your mobile number and update your account(s) with OfficeMax.
You agree to defend, indemnify, reimburse and hold OfficeMax and its parent, subsidiaries and affiliated entities, and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all claims, damages, investigations, liabilities, loss, damages, judgments, settlements, costs and expenses (including attorney's fees, costs and expenses and court costs) that directly or indirectly arise out of or are directly or indirectly related to:
You agree to fully cooperate as required by OfficeMax in the defense of any claim. OfficeMax reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of OfficeMax.
20. ELF SITE PERFORMANCE:
You acknowledge and agree that the operation of the Elf Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and OfficeMax will not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Elf Site. There are no assurances whatsoever that any of the User Materials or any part or element thereof will actually be utilized on the Elf Site or if so utilized continue to be available for any particular time. OfficeMax has the right, in its sole and absolute discretion, to remove from the Elf Site at any time the User Materials or any part thereof. Notwithstanding the foregoing, OfficeMax does not control the content of the User Materials and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content you submit to the Elf Site. The Elf Site may be discontinued at any time, with or without reason and without any liability to you or to any third party for any modification or discontinuance of any or all of the Elf Site.
21. NO WARRANTY:
THE ELF SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OFFICEMAX OR ANY OF ITS EMPLOYEES; DIRECTORS; OFFICERS; SHAREHOLDERS; AGENTS; VENDORS AND CONTRACTORS MAKE NO WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER EITHER EXPRESS OR IMPLIED, ABOUT, WITHOUT LIMITATION: THE ELF SITE; THE CONTENT ON OR PROVIDED THROUGH THE ELF SITE; USER MATERIALS; THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE ELF SITE; ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT OR THROUGH THE ELF SITE; AND/OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OFFICEMAX OR VIA THE ELF SITE. IN ADDITION, OFFICEMAX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
OFFICEMAX DOES NOT REPRESENT OR WARRANT THAT: THE ELF SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR CONTINUOUSLY AVAILABLE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE ELF SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. OFFICEMAX DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE ELF SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE ELF SITE, THAT YOUR USE IS AT YOUR SOLE RISK. OFFICEMAX DOES NOT WARRANT THAT YOUR USE OF THE ELF SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND OFFICEMAX SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS AGREEMENT. BY ACCESSING OR USING THE ELF SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE ELF SITE.
22. NO LIABILITY FOR THIRD PARTY USE:
OFFICEMAX DOES NOT ENDORSE THE USER MATERIAL OR COLLABORATIVE CONTENT, IS NOT RESPONSIBLE FOR THE USER MATERIAL OR COLLABORATIVE CONTENT AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER MATERIALS OR COLLABORATIVE CONTENT) USE OF THE USER MATERIALS OR COLLABORATIVE CONTENT MADE AVAILABLE ON THE ELF SITE BY THE USER PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU WILL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD-PARTY, AND NOT FROM OFFICEMAX. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS USER MATERIALS FROM OFFICEMAX (WHETHER OR NOT WITH OFFICEMAX'S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED UNDER THIS AGREEMENT, YOU WILL SEEK REDRESS FROM THE OTHER PERSON AND NOT FROM OFFICEMAX, AND THAT YOU WILL NOT HOLD OFFICEMAX RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
23. EXCLUSION OF DAMAGES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) WILL OFFICEMAX, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: THE ELF SITE; THE CONTENT; USER MATERIALS; YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE ELF SITE; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY OFFICEMAX OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE ELF SITE; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; ANY ERRORS OR OMISSIONS IN THE ELF SITE'S TECHNICAL OPERATION; OR ANY DAMAGE TO YOUR OR ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE OR DEVICE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER OR NOT OFFICEMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTE: SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN NO EVENT WILL OFFICEMAX’S TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED TWENTY DOLLARS ($20). YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OFFICEMAX' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY OFFICEMAX AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY OFFICEMAX.
BY ACCESSING THE ELF SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "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."
YOU ACKNOWLEDGE AND AGREE THAT OFFICEMAX HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN YOU AND OFFICEMAX, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
24. LOCATION OF ELF SITE AND EXPORT CONTROLS:
The information provided on the Elf Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject OfficeMax to any registration requirement within such jurisdiction or country. The Elf Site is controlled and operated from offices located in the United States and we make no representations or warranties that the information, products or services contained on the Elf Site are appropriate for use or access in other locations. Anyone using or accessing the Elf Site from other locations does so on their own initiative and are responsible for compliance with United States', and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Elf Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide. Software from the Elf Site (the "Software") is further subject to United States export controls. No Software may be downloaded from the Elf Site or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
25. GOVERNING LAW, JURISDICTION:
THIS AGREEMENT WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION'S CONFLICT OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE . . THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT WILL BE THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, OR THE STATE COURTS IN DUPAGE COUNTY, ILLINOIS, AND USER AND OFFICEMAX IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
OfficeMax has the right to assign this Agreement in whole or in part to any person or business entity. You may not assign your rights or delegate your obligations under this Agreement without the prior written consent of OfficeMax.
27. ENTIRE AGREEMENT, SEVERABILITY AND MODIFICATION:
This Agreement, together with certain Additional Terms, sets forth the entire understanding and agreement of your and OfficeMax as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter. If any provision of this Agreement will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. OfficeMax’s failure to act with respect to a breach by you or others does not waive OfficeMax’s right to act with respect to antecedent, subsequent or similar breaches.
28. STATUTE OF LIMITATIONS:
You agree that regardless of any statute or law to the contrary, any claim or cause of action you believe you may have, arising out of or related to use of the Service or this Agreement, must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
OfficeMax reserves the right to modify or add to this Agreement at any time (“Updated Terms”). You agree that we may notify you of the Updated Terms by making them available via the Elf Site, and that your use of the Elf Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms, which will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Elf Site from that point forward.