Terms of Service

Last Updated: March 11, 2013

Ning, Inc. (“Ning“, “we” or “us“) is an online service provider that provides a set of services and technology applications that enable users to create their own Networks utilizing our technology platform (the “Ning Platform“). Ning is not involved in the management of Networks on the Ning Platform and is not involved in the decisions relating to the focus of Networks or the Content uploaded or published to Networks using the Ning Platform. These are your Networks and, as a Network Creator, you are responsible for managing them in all respects (including the actions, conduct, and Content of Your Members) in compliance with these Terms of Service.

These Terms of Service contain general terms that apply to all users of the Ning Platform whether they create, join or browse Networks. When using the Ning Platform, you will also be subject to the Ning Privacy Policy and additional posted guidelines, policies or rules applicable to specific services and features on the Ning Platform, which may be posted by us from time to time (collectively, the “Guidelines“). All of these Guidelines are part of this Agreement and are hereby incorporated by reference.

Additionally, if you are developing applications, products or services for use by any Network Creator or their Members on the Ning Platform, using Ning’s application programming interfaces (“APIs“), or have otherwise signed up for a developer account (thereby becoming a “Third Party Application Developer“), you will also be subject to the Ning Application Developer Terms. If you are adding third party features, widgets or applications (“Third Party Applications“) or adding custom code not provided by or endorsed by Ning (“Non-Ning Code“) to your Network or your profile, you will also be subject to the terms of such third party.

The Ning Application Developer Terms (the “Other Ning Terms”) are hereby incorporated by reference into these Terms of Service. These Terms of Service, including, the Other Ning Terms and any Guidelines and future modifications (collectively the “Terms of Service” or “Agreement“) govern your use of the Ning Platform and is a legal contract between you and Ning.

The Ning Platform is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the Ning Platform. Any person who provides their personal information through the Ning Platform represents to us that they are 13 years of age or older.

You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using or creating a Network on the Ning Platform as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms “you” and “your” in this Agreement refers to your company or legal entity.

By registering with us or using or browsing the Ning Platform, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, you can stop using the Ning Platform at any time.

Quick Reference:

  1. Definitions
  2. Creating Your Own Network
  3. Ning Product Plans and Payment
  4. Your Code and Licenses to Your Code
  5. Your Content and Licenses to Your Content and Network Data
  6. Licenses From Ning
  7. Independent Development; Feedback
  8. Required Ning Notices
  9. Ning Ownership Rights
  10. Support and Interaction for Network Creators
  11. Advertising and Promotion for Network Creators
  12. Third Party Content and Hyperlinks to Third Party Sites
  13. Representations and Warranties
  14. Acceptable Use and Conduct
  15. Ning Platform Policies
  16. Ning’s Relationship with Users
  17. Copyright Infringement/Digital Millennium Copyright Act Compliance
  18. Network Data
  19. Your Network
  20. Your Account
  21. Network Design
  22. Domain Name Services
  23. Mode Content Creators
  24. Disclaimer of Warranties
  25. Indemnity
  26. Your Interactions with Other Users
  27. Limitation of Liability
  28. Changes to Ning Platform
  29. Amendments
  30. Term and Termination
  31. Governing Law; Venue
  32. Relationship of the Parties
  33. United States Export Controls
  34. General
  35. Contacting Ning

1. Definitions

Content” means (i) any work of authorship in a Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Network or the Ning Platform. “Your Content” is any Content that you submit to a Network or the Ning Platform, either as a Member or Network Creator (each as defined below). If you are a Network Creator, Your Content includes the name, logo, trademark, brand features and other Content that you make available. Content does not include Network Code or Platform Code.

Members” are users who have registered with a particular Network on the Ning Platform. “Your Members” are Members who have registered with Your Network.

Networks” consist of Network Code and other Content and are web applications running on top of the Ning Platform. Networks are created by Network Creators and are provided for their Members of that Network to interact and connect with other Members. Network features may include Member profiles, friends, invitations, discussion forums, photo sharing, video sharing, music and podcast sharing, events, latest activity streams, RSS feeds, pages, ratings, reviews, and recommendations, among others as well as Third Party Applications. If you are a Network Creator, “Your Network” is a Network created and operated by you on the Ning Platform.

Network Code” means the software code (i.e., HTML, Javascript, or PHP code) used to provide the functionality for a Network that is interpreted by the Platform Code (as defined below). Network Code consists of Ning proprietary code, Third Party Software (as defined below), and may also consist of or interact with Your Code (as defined below), as applicable, but expressly excludes Platform Code.

Network Creator” is a user who creates, manages and operates one or more Networks on the Ning Platform. A Network Creator is by definition a Member of each of his or her Networks.

Network Data” means all data collected from a Network or Member and includes registration information (including the Internet protocol (IP) address used by a Member at the time of registration), profile data, answers to Network profile questions, all Content and other information contributed by Members, and statistical information and analytics relating to usage and interactions within the Network.

Ning Product Plans” are the feature related services offered by Ning for a fee.

Ning Technology” means the past, present and future content of the Ning Platform, including all software in any format (including the Platform Code and Network Code), hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, themes, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectable elements of the Ning Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the Ning Platform and the Ning Platform itself, including, the selection, sequence, and “look and feel” and arrangement of items on the Ning Platform, and all Ning Marks (as defined below), domain names, patents, and other intellectual property. Ning Technology does not include Your Content or Your Code.

Platform Code” means the proprietary portion of the Ning Platform that is used to interpret the Network Code and other services available on the Ning Platform.

Third Party Software” means software that is licensed to you by third parties, including software that is subject to so-called “open source” licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.

Themes” means any Content or combination of script, code, or other computer software that constitute a theme on the Ning Platform. “Ning Theme” means a Theme created by Ning. “Third Party Theme” means a Theme not created by Ning.

Users” are all end users of the Ning Platform, and include Network Creators, Members, Third Party Application Developers, and any unregistered users or browsers.

Your Code” means any script, code, or other computer software created by you that interacts with the Ning Platform.

2. Creating Your Own Network

The Ning Platform is designed to give Network Creators and their Members the freedom to create and control their own experiences on Networks. Subject to this Agreement, as a Network Creator, you are responsible for controlling and managing your Network in all respects and as between Ning and you, you own all of Your Code, Your Content, and Your Network Data. Ning does not claim any ownership rights in Your Code, Your Content, or Your Network Data. In addition, Members of Your Network are your responsibility and Ning does not assume or accept any responsibility for the actions, conduct or Content of Your Members.

3. Ning Product Plans And Payment

Ning Product Plans

As a Network Creator, you must purchase a Ning Product Plan for your Network. The categories and prices of the currently applicable Ning Product Plans are described here, which we refer to as “Ning 3.0 Networks”, and are subject to change from time to time. If you created Your Network prior to March 11, 2013, which we refer to as “Ning 2.0 Networks”, the categories and prices of Ning Product Plans are described here and are subject to change from time to time. Ning may choose to temporarily change the fees for promotional or new services, and such changes are immediately effective when Ning posts the temporary promotional event or new service on the Ning Platform. At the end of your promotional period, your fees will automatically revert to the then-current fees for the applicable Ning Product Plan. Any changes to fees for the Ning Product Plans that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the Ning Platform. The changes shall only apply prospectively to the items you’ve purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.

Payment/Ongoing Plans/Cancellation

You are responsible for paying all fees and applicable taxes associated with the Ning Product Plans in a timely manner with a valid payment method. You authorize Ning or its third party payment providers to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein “Payment Method“) for all charges to your accounts with Ning. Your Payment Method will be charged the current fee for the Ning Product Plans you choose promptly following the end of your free trial period. To view and manage information relating to your Ning Product Plans, including billing and invoice history, please sign in to your Ning.com account.

You agree that your Ning Product Plans will continue in effect unless and until you cancel it or Ning terminates it. Unless so cancelled or terminated, Ning will automatically charge the applicable fee (and any taxes, if applicable) to your Payment Method at the beginning of each recurring billing period. For example, if you choose a Ning Product Plan with a monthly billing plan, you will be billed each successive month on or about the same date of the month that you initially clicked the purchase button (or otherwise elected to make a purchase). Additionally, we may offer a pre-pay payment option (such as annual billing) for payment of Ning Product Plans (“Pre-Payment Plan”). If you opt for a Pre-Payment Plan, your Payment Method will be charged the then-current fee for that Ning Product Plan at the commencement of the initial period and each renewal period. You may cancel your Ning Product Plans by following the instructions here.

You acknowledge and agree that any credit card and related billing and payment information that you provide to Ning may be shared by Ning with companies who work on Ning’s behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Ning and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. You agree to pay Ning all charges incurred under your account for any Ning Product Plans in which you or anyone else who uses your account enroll in accordance with this Agreement. If your Payment Method fails or your account is otherwise past due, (a) you agree to pay all amounts due on your account upon demand, (b) Ning may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) Ning reserves the right to either suspend or terminate your Ning Product Plans or your account with Ning. Please note that this means that if your account is past due, or if you have otherwise terminated or suspended your Ning Product Plan, access to your Network may be disabled and all items in Your Network, including its Content and Network Data, may be permanently deleted from the Ning Platform.

Ning Product Plans are subject to the billing and refund policy set forth here. Except as may be set forth in such billing and refund policy or Section 30 (Term and Termination), any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to Ning within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of Ning.

Taxes

You are responsible for paying any governmental taxes imposed on your use of the Ning Platform, including, but not limited to, sales, use, or value added taxes. If requested, you will promptly furnish to Ning the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that Ning is obligated to collect such taxes, the applicable tax will be added to your billing account.

4. Your Code and Licenses to Your Code

You own all of Your Code that you create to interact with the Ning Platform. Ning does not claim any ownership rights in Your Code. If you create any of Your Code to interact with the Ning Platform, subject to the licenses granted by you herein, you continue to retain any ownership rights you have and have the right to use and license Your Code in any way you choose (and you are responsible for protecting those rights as appropriate). At any point, you can take Your Code from Your Network and cancel your account and Ning shall not retain any license rights, except as provided below.

You hereby grant Ning a non-exclusive, worldwide, transferable, royalty-free right and license to use, access, store, cache, publicly display and publicly perform Your Code (a) for the purpose of operating and making Your Network available for interaction with the Ning Platform and in all current and future media in which the Ning Platform may now or hereafter be distributed or transmitted; or (b) for our internal business purposes so that we may derive metrics and analytics relating to the Ning Platform and Your Network.

You are responsible for making sure that you have all rights in Your Code and all rights that are necessary for you to grant the foregoing licenses to Your Code. You are solely responsible for ensuring that Your Code is compatible with any Ning Technology. Ning disclaims any liability or responsibility for any unauthorized use of Your Code by third parties or Users of Your Network and is not responsible for protecting Your Code.

5. Your Content and Licenses to Your Content and Network Data

You own all of Your Content, Your Network Data and other information that you upload to the Ning Platform. Ning does not claim any ownership rights in Your Content or Your Network Data. After posting Your Content, subject to the licenses granted herein, you continue to retain any ownership rights you have to Your Content, and you continue to have the right to use and license Your Content in any legally permissible way you choose. The Content that you upload to any Network needs to comply with the terms of this Agreement. At any point, you can remove Your Content from Your Network and cancel your account and Ning does not retain any license rights.

You hereby grant Ning, during the course of your usage of the Ning Platform, a nonexclusive, worldwide, royalty-free, and transferable right and license to (i) use, access, store, cache, publicly perform and publicly display Your Content and Network Data (a) for the purpose of operating and making Your Content and Network Data available on the Ning Platform and in all current and future media in which the Ning Platform may now or hereafter be distributed or transmitted or (b) for our internal business purposes so that we may derive metrics and analytics relating to Your Content and Network Data; and (ii) disclose any such metrics and analytics regarding Your Content and Network Data for marketing and business development purposes. This license will terminate at the time you remove Your Content from the Ning Platform. Without limiting the foregoing, you agree that Content you remove may persist for a reasonable amount of time in back-up copies (but these copies will not be available to others).

For Ning 3.0 Networks, Ning may introduce the option to participate in a marketplace-type program designed to entice Network Creators to benefit from each other in terms of Content and Members across the Ning Platform. The intent of such program would be to provide participating Networks with several benefits, including: (i) reaching a broader audience with compelling Content from Your Network (for example, Network Creators of Ning 3.0 Networks could be given the option to feature Content that originated from other participating Ning 3.0 Networks and/or compelling Content from participating Ning 3.0 Networks could be redistributed by Mode Media Corporation on its owned & operated web properties (in each case, with attribution and links back to the originating Network) and (ii) new ways to attract Members that may be relevant to Your community and objectives (for example, a transparent and automated way for any Member of a participating Ning 3.0 Network to discover other relevant Ning Networks that are participating in such program and/or participating Ning 3.0 Networks may also be given periodic lists of suggested Members from other participating Ning 3.0 Network to invite to Your Network.

To deliver such an automated marketplace-type program, Ning 3.0 Networks that choose to participate in such program grant to Ning a right to (i) provide, promote and improve the Ning Platform, including through sending invitations and other similar bulletins to Members of Your Network and (ii) make Content submitted to the Ning Platform available for syndication, broadcast or other distribution elsewhere on the Ning Platform or on Mode Media Corporation owned and operated websites. The rights in this paragraph would only apply if a Network Creator elects to grant such rights to Ning as part of Ning 3.0 Network subscription purchase flow or other similar mechanism offered to Network Creators by Ning.

You hereby agree that if Your Content is removed from any Network due to a violation of these Terms of Service, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, Ning shall have the right to use and reproduce Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of Ning, any User or individual, or the general public.

You are solely responsible for Your Content and Network Data. You are responsible for making sure that you have all rights in Your Content and Network Data, including the rights necessary for you to grant the foregoing licenses to Your Content and Network Data. You understand that whether or not Your Content is published or marked private by you, Ning does not guarantee any confidentiality or privacy with respect to any of Your Content or Network Data.

Additionally, you understand and agree that Your Content and Network Data that is displayed on the Ning Platform may continue to appear on the Ning Platform, even after you have terminated your account, as portions of Your Content may have been incorporated into Member profiles, RSS feeds or other features.

In addition to the rights, licenses and privileges referred to above, you agree that Ning may use and refer to your Network (including screen shots), trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, press releases, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the Ning Platform, and any products, goods, features, capabilities and/or services associated with the Ning Platform.

As a Network Creator or Member you acknowledge that Ning and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any Network or the Ning Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.

If a Network or Member account is removed from the Ning Platform, the Content associated with that Network may also be deleted at the discretion of the Network Creator or Ning. We encourage you to be sure you are comfortable with this possibility before contributing Your Content to a Network. You should be aware that Ning is not required and may not keep back-up copies of Content on the Ning Platform once the Network or Content is deleted. Additionally, Ning makes no guarantee, either during or after the term of this Agreement, that Your Content will be safely stored on the Ning Platform and you should independently back-up and archive Your Content.

6. Licenses From Ning

License to Ning Platform

During and subject to the terms and conditions of this Agreement, Ning hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable license to access and use the Ning Platform solely to enable your use and creation of Networks on the Ning Platform. For clarity, aside from the foregoing limited license, you acknowledge that you shall acquire no rights in the Platform Code or Network Code.

You agree that, as between you and Ning, all the intellectual property rights in the Ning Technology are owned by Ning or its licensors.

License Restrictions

Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:

  • Run, rent, lease, loan, or sell access to the Ning Platform or the Ning Technology.
  • Decompile or reverse engineer or attempt to access the source code of the software underlying the Ning Platform or Ning Technology.
  • Copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any Ning Technology.
  • Access the Ning Platform to build a product using similar ideas, features, functions, interface or graphics of the Ning Platform.
  • Access (or attempt to access) any service on the Ning Platform by any means other than as permitted in these Terms of Service.
  • Circumvent, disable or otherwise interfere with security related features of the Ning Platform or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Ning Platform or the Content and Third Party Content therein.
  • Access the Ning Platform to upload Your Code or Your Content to cause a breach of security to the Ning Platform or any Network or interfere with the proper working of the Ning Platform or prevent others from using the Ning Platform.
  • Delete the copyright and other proprietary rights notices on the Ning Platform.

7. Independent Development; Feedback

You agree that Ning may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing Ning from creating, using or offering for use such software, content and other items, without any obligation to you.

You may from time to time choose, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to Your Network or the Ning Platform (including the Network Code and Platform Code), including, without limitation, on the Ning Blog, Creators Network, Ning Build, the directory of Ning Apps, or in connection with surveys we send to you and as part of your participation in any council or similar group of Network Creators (“Feedback“). If you choose to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant Ning a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use such Feedback.

8. Required Ning Notices

Ning trademarks, logos, images, service marks, trade names and other distinctive branding features used on the Ning Platform (“Ning Marks“) are the trademarks of Ning and may not be used without permission. Ning is not granting you a license under any intellectual property right to the Ning Marks. Other trademarks, logos, and trade names that may appear on the Ning Platform are the property of their respective owners.

In addition, Ning 3.0 Networks include a “Powered by Ning” clickable notice in the footer of each page of such Networks. This “Powered by Ning” notice may not be removed, obscured or otherwise adjusted, including through any custom CSS.

9. Ning Ownership Rights

You agree that, as between you and Ning, Ning owns all right, title and interest, including, all intellectual property rights, in and to the Ning Technology. Any rights not expressly granted herein, are reserved to Ning. You agree to abide by all copyright notices, information, or restrictions contained in any part of the Ning Platform. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the Ning Platform, including notices on any Ning Technology you download, transmit, display, print or reproduce from or using the Ning Platform.

10. Support and Interaction for Network Creators

If you are a Network Creator, Ning provides documentation to assist you in creating and enhancing Your Network(s). You may access helpful information here. You are responsible for implementing and maintaining all support for Your Network(s), including answering questions from Your Members. This includes, if you’ve customized the Network Code yourself (only as authorized by Ning), fixing bugs that Your Members might find and tell you about.

11. Advertising and Promotion for Network Creators

At your sole discretion and risk, you may sell, run and/or serve third party advertising on your Network. If you include advertising on your Network, you agree and consent to Ning providing you with information, offers, programs, features and functionality relating to advertising, including deals with advertising partners and advertising networks.

YOU AGREE THAT NING WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR NETWORK.

12. Third Party Content and Hyperlinks to Third Party Sites

Networks may contain features and functionalities that allow access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. 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 are solely responsible for your dealings with any third party, including the use of applications or services and the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third party services, you agree that Ning will not be responsible.

Additionally, Code, Content or Themes from Users, third parties, or advertisers, including, information about third party products and services and any Third Party Applications, may be made available to you through Networks (“Third Party Content“) on the Ning Platform. The inclusion of Third Party Content on the Ning Platform does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and Ning has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, Ning or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any Network) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using the Ning Platform you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use the Ning Platform at your own risk.

Additionally, Ning or third parties may provide hyperlinks on Networks, or any other form of link or redirection of your connection to other sites (“Third Party Sites“). These Third Party Sites are in no way integrated into the Ning Platform and the inclusion of any link on a Network does not imply Ning’s affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. Ning expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through the Ning Platform. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.

13. Representations and Warranties

You represent and warrant to Ning that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of the Ning Platform including your promotional or other activities on or off the Ning Platform that relate to Your Network; (b) you have the right to grant to Ning the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code, Your Content and Your Art Assets (as defined below); (c) Your Code, Your Content and Your Art Assets do not and will not (i) infringe, violate or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content, Your Art Assets or Your Network contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Ning Platform, or intercept or expropriate any system data or personal information from the Ning Platform.

14. Acceptable Use and Conduct

You are solely responsible for your conduct, Your Networks, Your Code, and Your Content on the Ning Platform. We want to keep the Ning Platform safe and fun for everyone and the use of the Ning Platform for unlawful or harmful activities is not allowed. In defining “safe and fun,” you specifically agree that:

You will not post, email or make available any Content to Users or use the Ning Platform:

  • In a manner that infringes, violates or misappropriates any third party’s intellectual property rights or other proprietary rights or contractual rights;
  • in a manner that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • to engage in spamming, “chain letters,” “pyramid schemes”, advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms of Service, any applicable laws, regulations or generally-accepted advertising industry guidelines, including to other Users whether on or off the Ning Platform in connection with Your Network;
  • in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
  • in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another’s privacy;
  • in a manner that is harmful to minors in any way;
  • in a manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Ning;
  • to impersonate a Ning employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to a Network or the Ning Platform without authorization;
  • to interfere or attempt to interfere with the proper working of the Ning Platform or prevent others from using the Ning Platform, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Ning Platform, or that otherwise negatively affects other persons’ ability to use the Ning Platform;
  • to use any manual or automated means, including agents, robots, scripts, or spiders, to access or manage any user’s account or to monitor or copy the Ning Platform (including the Network Code or Platform Code) or the content contained therein;
  • to facilitate the unlawful distribution of copyrighted content;
  • in a manner that includes personal or identifying information about another person without that person’s explicit consent;
  • in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Ning Platform or to Users; and
  • in a manner that constitutes or contains any form of advertising or solicitation if emailed to Users who have requested not to be contacted about other services, products or commercial interests.

Additionally, you agree not to:

  • “Stalk” or otherwise harass anyone;
  • Collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations;
  • Except as specified in Ning API documentation, collect, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of the Ning Platform, or to proxy authentication credentials for any Member of the Ning Platform for any purpose, including automating logins to the Ning Platform (provided that if you do request such authentication information for the purpose of developing through the Ning API, you may not use such information for any purpose other than initial authentication of the Member, and in any event, you may not archive, store or otherwise retain such information);
  • Use any profanity or the description or name of any illegal activity in the name of Your Network or the Network Subdomain (as defined below) for Your Network;
  • Use the name “Ning” as any part of the name of Your Network or the Network Subdomain;
  • Post any Content containing child pornography to any Network. Ning absolutely does not tolerate this and will report any suspected instances of child pornography, including reporting any Network Data, to law enforcement, including the National Center for Missing and Exploited Children;
  • Post any Content that Ning determines depicts or contains rape, extreme violence, murder, bestiality, incest, or other similar content;
  • Post any Content that Ning determines constitutes pornography, contains nudity, or is otherwise of a similar adult nature. Ning’s current definition of these categories is located here and is subject to change.
  • Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from Networks and the Ning Platform – except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or “well-behaved” web services/RSS/Atom clients. We reserve the right to define what we mean by “well-behaved”;
  • Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on Ning’s infrastructure;
  • Attempt to gain unauthorized access to Ning’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Ning Platform;
  • Use the Ning Platform as a generic file hosting service; and
  • Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Ning Platform.

You agree not to authorize or encourage any third party to use the Ning Platform or any of Your Networks (and Your Networks will not be designed) to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify Ning in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in this Agreement.

15. Ning Platform Policies

Ning establishes general polices and limits from time to time concerning use of the Ning Platform (“Ning Platform Policies“), including, the maximum number of days that Networks and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages initiated by Network Creators and Administrators), the maximum disk space allotted to you or Your Network(s), the maximum number of times and duration for which you may access the Ning Platform or Networks in a given period of time and the maximum storage and bandwidth used by Your Network(s) or Content. For example, the currently applicable maximum bandwidth and storage limitations for Networks are each 1TB. In the interest of managing potential email spam, Network Creators may generally not initiate more than ten emails per month to any Member. If Ning determines Your Network is in violation of any Ning Platform Policy, then Ning may take action to correct this violation, with or without notice.

16. Ning’s Relationship with Users

You acknowledge that Ning may terminate your account and remove your Content and other Network Data, as well as disable your access to any and all Networks and the Ning Platform at any time for violations of these Terms of Service without notice and without any liability to you. In addition, you acknowledge and consent to Ning contacting you and Your Members in order to maintain compliance with these Terms of Service.

17. Copyright Infringement/Digital Millennium Copyright Act Compliance

It is Ning’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). For more information, please go to Ning’s DMCA Notification Guidelines. Ning may remove any allegedly infringing Network Code or Content without any liability to you.

Ning will promptly terminate without notice any User’s access to the Ning Platform, including access to any Network, in appropriate circumstances where the User is a “repeat infringer” of copyrights. Ning, however, reserves the right to identify and terminate Users under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that User. Additionally, if a Network Creator continues to allow its Members to post Content that is subject to notices of alleged copyright infringement, the Network may (at Ning’s sole discretion) be disabled. In the case of such disabling, Ning will have no obligation to provide a refund of any amounts previously paid to Ning.

Additionally, if you are a Network Creator, you agree to: promptly (and in any event in no more than 24 hours) address (including removing or disabling access to the allegedly infringing content for valid DMCA take down notices) any copyright owner’s written notice (including any notices forwarded to you by Ning) that specified Content or Network Code posted on Your Network infringes that third party’s rights (including copyrights), provided that the notice substantially complies with the requirements in the DMCA. If you receive a counter-notice from the applicable Member that substantially complies with the requirements of the DMCA instructing you to replace the allegedly infringing Content or Network Code, you agree to replace or cease disabling access to the Content or Network Code not less than ten (10) and no more than fourteen (14) days after receiving the counter notice, provided that the complaining party has not notified you that it has filed an action against the Member regarding the alleged infringement. You also agree to forward a copy of the counter notice to Ning. Ning strongly recommends that you consult with a legal professional to confirm your obligations under the DMCA. Ning is not providing legal advice to you and nothing in this Agreement is legal advice nor guarantees your compliance with applicable law or regulation. You are solely responsible and liable for complying with all applicable laws, including copyright and privacy laws in connection with Your Network.

18. Network Data

The Ning Platform collects Network Data from Your Network and Members and general information about a User’s use of Your Network. If you are a Network Creator or Administrator, you agree that your access to and use of this Network Data and any related information (including registration information provided by Members during the registration process) as part of the management controls of Your Network(s) is subject to the Ning Privacy Policy. In addition, subject to this Agreement, you may collect Network Data from Your Members; if you do so, you agree that such Network Data shall not be used in a manner inconsistent with, or that violates or causes Ning to violate, Ning’s Privacy Policy.

If you are a Network Creator or an Administrator, you agree that your use and disclosure of Network Data shall: (a) comply with all applicable laws; and (b) be reasonably protective of each Member’s privacy rights.

Subject to this Agreement and each Member’s rights, all Network Data shall be the property of the applicable Network Creator. That being said, Ning needs to run Your Network on the Ning Platform. To this end, as a Network Creator, you hereby grant Ning a nonexclusive, worldwide, transferable, fully paid-up, royalty-free right and license to (i) use, store, access, cache, publicly perform and display the Network Data on or through the Ning Platform and in all current and future media in which the Ning Platform may be distributed; (ii) use and disclose the Network Data and related analytics and metrics in an aggregate or other non-personally identifiable manner (including, for use in targeting advertising in a non-personally identifiable manner through and in connection with the Ning Platform); and (iii) use Network Data for other purposes permitted by the Ning Privacy Policy.

You acknowledge that Ning may receive requests from Users or persons authorized to act on behalf of such Users to modify or delete personally identifiable information relating to such Users on Your Network. Accordingly, you agree that, within 24 hours of any email request by Ning, you will: (a) delete all Network Data and personally identifiable information in your possession or control relating to a particular User as specified by Ning; and (b) confirm such deletion in email notice to Ning.

Ning is not required to keep back-up copies of Network Data on the Ning Platform once the Network or Network Data is deleted. Ning makes no guarantee that Network Data will be safely stored on the Ning Platform. To be safe, you should independently back-up or archive your Network Data.

19. Your Network

As a Network Creator, we want to give you as much freedom as possible to create and control the Networks you build on the Ning Platform. You may have your own agreement(s) or policies between you and each of Your Members, provided that each such agreement or policies do not supersede, amend or otherwise affect in any way any terms of this Agreement, any Guidelines or our Privacy Policy.

To enable a great experience for all Users on the Ning Platform, if you are a Network Creator, you agree to ensure each Network you create or manage does not degrade the performance of the Ning Platform. If your Network(s) exceed the quotas and limitations set by Ning (e.g., storage or bandwidth) or otherwise degrades performance of the Ning Platform or other services in any way, we may suspend your Network(s) at our sole discretion and without notice.

You agree not to harvest any email addresses from Networks or the Ning Platform for the purpose of sending email in violation of applicable law or otherwise violate the “Acceptable Use and Conduct” provisions of this Agreement.

You also agree not to knowingly collect any information from, or develop any Networks that are targeted at children under the age of 13.

You acknowledge that Ning may terminate the account of any Member (including Your Members) in accordance with these Terms of Service.

Your Network shall not be designed or implemented in a way that, as determined by Ning, might mislead a User into believing that: (i) he or she is interacting directly with Ning when interacting with Your Network or (ii) any part of Your Network was created by or are endorsed by Ning. Because we want you to have as much freedom over your Network as possible, Ning takes no responsibility for any Content located in Your Network and Ning has no obligation to monitor such Content or Your Network.

You acknowledge that Ning also reserves the right to remove, preserve, and disclose any information or Content on any Network (including Network Data) or account it deems necessary or appropriate to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, (e) protect the rights, property, or safety of Ning, its Users, and the general public, or (f) investigate or defend ourselves against third party claims or allegations.

You acknowledge that Ning may place third party web beacons or cookies in the footer of the pages of Your Network for the sole purpose of tracking anonymous website statistics, including traffic numbers and visitation patterns, about your Network. No personally identifiable information is transmitted by, or linked to, the web beacon or any cookies. These web beacons are commonly used by companies to understand visitation to their websites. For more information regarding passive data collection and what choices are available to you, please see our Privacy Policy.

As a Network Creator, You are solely responsible for the operation and management of Your Network. In particular, Ning currently offers an optional Add On feature known as Paid Access (“Paid Access”), which lets You charge Members a fee for certain items on Your Network (such as paid membership, paid groups, paid content or donations). If you choose to enable Paid Access, You are solely responsible for all matters relating to Paid Access and Your Members, including but not limited to billing and refund questions.

20. Your Account

You need to register and create an account in order to become a Network Creator on the Ning Platform or a Member of Network. You are responsible for keeping your account credentials and password secure. You agree to provide Ning with current, complete and accurate information as prompted by the registration process. You agree to promptly update all information to keep your account on Ning current, complete and accurate (such as noting a change in billing address or email). Generally speaking, account credentials are non-transferable, but Network Creators will have the ability to reset Member passwords in the event that a Member loses or can’t remember it. You will be solely responsible and liable for any activity that occurs under your account credentials. Ning reserves the right to log off or deactivate Member accounts, including Your Network, that are inactive for an extended period of time.

When you create Your Network, Ning gives you the flexibility to choose your own subdomain for Your Network (e.g.,” developer” in the example: http://developer.ning.com) (“Network Subdomain“). Ning also gives you the option to use your own domain with certain Ning Product Plans (e.g., www.network.com or my.network.com), which is known as domain mapping (“Domain Mapped Networks”). You will be solely responsible and liable for any activity that occurs under Your Network’s Subdomain or on Your Domain Mapped Network. Ning maintains ownership of your Network Subdomain and grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license solely to use the Network Subdomain on the Ning Platform.

You may not use anyone else’s account or Network Subdomain at any time, without the permission of the account holder. You should never give out your password to another individual or entity. Ning will not be liable for any loss that you may incur as a result of someone else using your account credentials, Network Subdomain or password, either with or without your knowledge. However, you may be held liable for losses incurred by Ning or another party due to someone else using your account credentials, Network Subdomain, or password. In other words, please be careful with your identity and passwords.

In order to help us deliver the highest value platform and revenue programs to Network Creators, Ning needs to account for all of the traffic and usage on the Ning Platform, including Domain Mapped Networks. Ning uses comScore Inc. (“comScore”) to get a third party measurement of the worldwide audience and usage across the Ning Platform. Unless you request at any time to opt-out by contacting us via email at comscoreoptout [at] ning [dot] com, you agree to assign the traffic relating to your Domain Mapped Network to Ning (through its parent company, Mode Media Corporation), including authorizing us to sign a Traffic Assignment Letter on your behalf for comScore syndicated audience measurement reports (collectively, a “Traffic Assignment”). As part of your Traffic Assignment, you confirm that you (i) are majority owner of the URL for your Domain Mapped Network, (ii) have a legitimate business relationship with Ning, (iii) understand that your Domain Mapped Network URL will not receive credit for traffic to such URL in the syndicated audience reports for those entities where Ning elects to include such URL and (iv) traffic for your Domain Mapped Network URL may not be assigned to any other company. Your Domain Mapped Network’s traffic will be viewable in the comScore syndicated audience measurement reports and will be included under the Ning/Mode Media Corporation property roll-up.

Should we or comScore require additional documentation to verify ownership of your Domain Mapped Network URL, you agree to provide reasonable efforts to accommodate such request. For example, if you are not the named registrant of the Domain Mapped Network URL, you must provide documentation demonstrating that the registrant of such URL is owned or employed by a company that you own. You understand that authorization and acceptance of this Traffic Assignment imposes no legal liability whatsoever on Ning or comScore for damages, whether actual, incidental or consequential, relating to the maintenance or reporting of the Domain Mapped Network URL. You are fully responsible for timely notification to Ning and comScore of any updates to the Domain Mapped Network URL, including, but not limited to, changes in ownership of such URL. You shall indemnify and hold harmless Ning and comScore from and against any claims, liabilities, costs and expenses of any kind (including reasonable attorney’s fees and expenses) arising out of any allegation of improper assignment by you of the URLs pursuant to this Traffic Assignment.

21. Network Design

If as a Network Creator, you have provided any art assets or other intellectual property to Ning to design, or assist you with designing Your Network (“Your Art Assets”) the following additional provisions will apply to you.

Your Ownership. As between Ning and You, You own all right, title and interest, including all intellectual property rights, in and to Your Art Assests and any specific deliverable or work product created by Ning for You (“Deliverables”); provided, however, that in no event shall the term Deliverables include any Ning Tools. “Ning Tools” means any Ning Technology or trade secret, process, algorithm, invention, original works of authorship, development, design, improvement, patent, copyright or other intellectual property of Ning which Ning (a) developed or acquired previous to entering into a Network design engagement with You; (b) acquired after the commencement of a Network design engagement with You and independently of such design engagement or (c) developed either alone or in collaboration with others, separate and apart from any Network design engagement with You, and all derivative works based thereon. Ning Tools shall also include any software, project management, design and development processes and productivity tools developed by Ning, and of general applicability to Ning’s business, whether or not prepared under the course of performance of a Network design engagement with You.

Ning Ownership. As between Ning and You, Ning owns all right, title and interest, including all intellectual property rights, in and to the Ning Tools and Ning Technology and any derivative works or enhancements thereof. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in the Agreement. Any rights not expressly granted by Ning herein are reserved to Ning and its suppliers. Ning acknowledges and agrees that a design engagement does not grant to Ning any right, title or interest in any content, code, software, Member data or other materials delivered to Ning by You in connection with a design engagement (“Your Design Materials”), except for the limited rights expressly set forth in these Terms of Service. Any rights not expressly granted herein, are reserved to each of the parties.

License Grant to You. Subject to the terms and conditions hereof, Ning hereby grants to You, a non-exclusive, nontransferable, non-sublicensable worldwide, perpetual, royalty-free license, to use that portion of any Ning Tools that are incorporated into any Deliverables solely in connection with Your use of Your Network(s) on the Ning Platform. You shall not otherwise be entitled to use, license or commercially exploit the Ning Tools and any such use may result in the revocation of the license rights herein.

License Grant to Ning. During the course of your usage of the Ning Platform, you hereby grant to Ning a non-exclusive, worldwide, royalty-free, and transferable right and license, to use, access, cache, reproduce, publicly perform and publicly display Your Art Assets for the sole purpose of designing Your Network and operating and making Your Art Assets available on the Ning Platform and in all current and future media in which the Ning Platform may now or hereafter be distributed or transmitted.

22. Domain Name Services

Ning provides certain registration and maintenance of domain names for Your Network(s) through one or more preferred domain name registrars (“Domain Name Services”). All sales of Domain Name Services are final. The registration and administration of such domain names is conducted pursuant to general policies established from time to time by the Internet Corporation for Assigned Names and Numbers (“ICANN”). ICANN has delegated the registration and administration of particular TLDs to accredited domain name registrars in accordance with general ICANN policies, as interpreted by each domain name registrar. Accordingly, there may be significant differences among registrars in administration of domain names for particular TLDs.

When purchasing Domain Name Services for Your Network, You are required to enter into a registration agreement with Ning’s then-current domain name registrar. The registration agreement and associated terms for Ning’s current registrar (which registrar may change from time to time) can be found here. You should carefully review each particular registration agreement relating to Domain Name Services. You are solely responsible for compliance with such registration agreement and continued use of Your Network and the Domain Name Services shall constitute Your binding acceptance of such registration agreement.

Ning accepts no responsibility for refusal of a domain name registrar to register a particular domain name. You irrevocably waive any rights of any kind whatsoever against Ning arising from such refusal. If you fail to timely pay Ning for the applicable Domain Name Services, You may permanently lose your domain name. If you choose to end your Domain Name Services or otherwise terminate your Network, You are solely responsible for all future matters relating to the applicable domain, including renewal. Neither Ning nor our applicable registrar accepts liability for any failure, for any reason whatsoever, to renew a domain name on a timely basis. ICANN policies require cancellation of domain names in certain circumstances, including fraud, provision of false registration details, interference with the rights of third parties and other grounds. You are not entitled to a refund of registration fees on any such cancellation, and neither Ning nor our applicable registrar accepts liability for any such cancellation. It is your sole responsibility to review and adhere to the terms and conditions of the registration agreement for each domain name, including any terms and conditions which may lead to cancellation of domain names.

23. Mode Content Creators

Ning’s parent company, Mode Media Corporation, offers certain content creators (“Mode Content Creators”) the ability to deliver brand advertising to online audiences in certain targeted lifestyle verticals. If a Network Creator chooses to apply to become a Mode Content Creator and is thereafter accepted, the additional terms of this Section 23 will apply to those Networks that have become Mode Content Creators. You hereby grant Ning and its affiliates (including Mode Media Corporation) a nonexclusive, worldwide, royalty-free and transferable right and license to use, reproduce, modify, perform, display, prepare derivative works of, or incorporate into other works, transmit and distribute Your Content for any commercial purposes, including advertising, promoting and publicizing such Content on Mode Media Corporation owned and operated websites (such as glam.com, modemediacorp.com bliss.com, brash.com, foodie.com or tend.com) or other affiliated websites. If you cancel your account with Ning and remove Your Content from Your Network, the foregoing license shall terminate. For the avoidance of doubt, this Section 23 shall only be applicable to any Network whose Network Creator specially chooses to apply to become, and is thereafter accepted as, a Mode Content Creator.

24. Disclaimer of Warranties

YOUR USE OF THE NING PLATFORM, ANY PRODUCTS OR SERVICES OFFERED THROUGH THE NING PLATFORM, AND ALL NETWORK CODE, PLATFORM CODE, NING THEMES, THIRD PARTY SOFTWARE, NON-NING CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE NING PLATFORM, ANY PRODUCTS OR SERVICES OFFERED THROUGH THE NING PLATFORM, AND ALL NETWORK CODE, PLATFORM CODE, NING THEMES, THIRD PARTY SOFTWARE, NON-NING CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NING AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. NING AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT THE NING PLATFORM, ANY PRODUCTS OR SERVICES OFFERED THROUGH THE NING PLATFORM OR ANY NETWORK CODE, PLATFORM CODE, NING THEMES, THIRD PARTY SOFTWARE, NON-NING CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NING PLATFORM OR THE SERVER THAT MAKES THE NING PLATFORM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NING MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE NING PLATFORM OR YOUR NETWORK (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR NETWORK OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-NING CODE WITH ANY NING TECHNOLOGY.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NING PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NING OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM THE NING PLATFORM (INCLUDING THROUGH CUSTOMER SUPPORT) SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

25. Indemnity

You agree to indemnify, defend, and hold harmless Ning, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, third party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to:

  • Your Code, Your Content, Your Network Data, Your Art Assets or Your Network;
  • Your use of any Non-Ning Code or Third Party Applications;
  • Your use or misuse of, or connection to, the Ning Platform or any services offered by the Ning Platform;
  • Your use or misuse of any services offered by Ning;
  • Your breach or alleged breach of this Agreement;
  • Your violation of any rights (including intellectual property rights) of a third party;
  • Your use or misuse of any User data or Network Data, including, in violation of the Ning Privacy Policy and
  • Your breach or alleged breach of any agreement or policy between you and other Users.

Ning reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Ning. Ning will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

26. Your Interactions with Other Users

Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party (including any Member or Network Creator), Ning is under no obligation to become involved.

You release Ning, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” And, if you are not a California resident, you waive any applicable state statutes of a similar effect.

27. Limitation of Liability

YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL NING OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF NING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE NING PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE NING PLATFORM (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO NING BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.

THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN NING (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE NING PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

28. Changes to Ning Platform

Ning reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Ning Platform or any part thereof, including adding new features to any portion of the Ning Platform, with or without notice. Ning will not be liable to you or to any third party for any modification, suspension or discontinuance of any portion of the Ning Platform or the Ning Platform as a whole.

29. Amendments

We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.ning.com or elsewhere on the Ning Platform. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of the Ning Platform after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing User (including Network Creator or Member) on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.ning.com or elsewhere on the Ning Platform. The revised version will apply to you immediately if you are a User who registers or first uses the Ning Platform on or after the posting of the revised version.

30. Term and Termination

Term

This Agreement shall remain in full force and effect unless and until your account is terminated or otherwise deactivated as provided herein. You may terminate or deactivate your account and end your use of the Ning Platform at any time and for no reason by contacting us at termsofservice [at] ning [dot] com or at the address set forth below in the “Contacting Ning” Section.

Termination

Ning has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Ning Platform or any Network, (ii) remove and discard any Code or Content within any Network or anywhere on the Ning Platform or (iii) shut down a Network, including permanent deletion of any Network Data, with or without notice, and with no liability of any kind to you.

If you terminate or deactivate your account or we terminate your account for your actual or anticipated breach of your obligations under this Agreement, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.

Effects of Terminating

Upon deactivating your account, this Agreement terminates and you will no longer have a right to access your account, Your Code, Your Content, Your Network Data or Your Network(s). Ning will not have any obligation to assist you in migrating your data, Your Content, Your Network Data, Your Code or Your Network(s) off of the Ning Platform and Ning does not keep any back-up of any of Your Code, Your Content or Your Network Data.

Survival

The following Sections will survive termination of these Terms of Service for any reason: Sections 1, 3-9, 13—35. For clarity, all the licenses granted by Ning hereunder shall terminate upon any expiration or termination of this agreement and Ning shall have no obligation to provide you with access to any product or service after the termination of these Terms of Service.

31. Governing Law; Venue

This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.

You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

32. Relationship of the Parties

The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that Ning has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.

33. United States Export Controls

You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, you agree that you shall not — directly or indirectly — sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from Ning under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Ning from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.

34. General

The failure of Ning to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

You may not delegate your duties under this Agreement or assign this Agreement or your Ning accounts, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. Ning may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties’ permitted assignees, transferees and successors.

This Agreement, which incorporates the Other Ning Terms, Ning Privacy Policy and the Guidelines, constitutes the entire agreement between you and Ning and governs your use of the Ning Platform, superseding any prior agreements (whether written or oral) between you and Ning regarding the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in this Agreement.

The terms “including” and “includes” shall be deemed to be followed by the statement “without limitation” and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.

Ning may provide you with notices, including those regarding changes to this Agreement or any of Ning’s terms and conditions, by email, regular mail, or postings on the Ning Platform including the Ning Blog and Creators Network. Notice will be deemed given twenty-four (24) hours after such email is sent or notice is posted. Notices not pertaining to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to the Ning Platform) are deemed given two (2) days following the initial posting.

35. Contacting Ning

You may contact Ning in the following ways:

Help Center:

To submit an inquiry, click here.

E-Mail:

termsofservice [at] ning [dot] com or by contacting our Help Center.

Postal:

Ning
2000 Sierra Point Parkway
Suite 1000
Brisbane, CA 94005
Attn: Privacy Matters