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Terms of Service - TallyUp, Inc.

Last updated:  January 24, 2010



TallyUp is an interactive online community that offers rich, user-generated content, enabling people to collect and share opinions and other information about themselves with others. TallyUp, Inc. ("We," "us," or "TallyUp") encourages and facilitates knowledge share through user generated polls, surveys, comments, discussion, and other forms of communication. 


These Terms of Service (the "Terms") are a binding legal agreement between you and TallyUp regarding your use the services provided by us whether accessed via our website, available at http://www.tallyup.com, or through a third-party website (the "Service"). By using the Service you ("User," "you," or "your") agree to be bound by these Terms and you are only authorized to use the TallyUp Service if you agree to abide by all applicable laws and to these Terms. If you do not agree to these Terms, you must not access or use the Service.

We may periodically modify these Terms.  All such modifications will be effective upon posting on our website at http://www.tallyup.com/terms.html.  It is your responsibility to review the most recent version of these Terms frequently and remain informed of any changes to it.  Your continued use of the Service after the posting of any such modification will constitute your agreement to the modified Terms as of the date of the modification.


1. Eligibility

You must be 13 years of age or older to use the Service. Use of the Service is void where prohibited. You represent and warrant that any profile information you submit is true and accurate and that you are 13 years of age or older and are fully able and competent to enter into, and abide by, these Terms. You can only use our Services if it is in fact legal for you to do so as determined by the laws of the country, state, and/or territory in which you live and access the Services.


2. Account Registration

You may log onto the Service via a registered account, through Facebook Connect, or with your Twitter credentials. You will notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at support@tallyup.com.

In order to access some features of the Service, you will have to register an account ("Account"). You may not use another User?s Account. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on or in association with your Account, and you must keep your Account password secure. You must notify TallyUp immediately of any breach of security or unauthorized use of your Account. Although TallyUp will not be liable for your losses caused by any unauthorized use of your Account, you may be liable for the losses of TallyUp or others due to such unauthorized use. You may terminate your Account at any time, for any reason, by going to contact us and submitting a message saying you would like to terminate the Account. TallyUp reserves the right to terminate or disable your Account without prior notice and in our sole discretion. You will be bound by these Terms even after your Account is terminated.


3. Use Restrictions

You will not: (a) alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; (b) use the Service for any commercial purpose, except for as expressly permitted by these Terms; (c) access, monitor, or copy any content or information on the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (d) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (e)collect or harvest any personally identifiable information, including account names, from the Service; (f) use the communication systems provided by the Service for any commercial solicitation purposes; (g) deep-link to any portion of the Service for any purpose without our express written permission; (h) "frame," "mirror," or otherwise incorporate any part of the Service into any other website without our prior written authorization; or (g) intentionally or unintentionally violate any applicable local, state, national or international law or regulation.

The Service contains content from us, our Users, and our third-party licensors (such as advertisers). Except for the content posted by you, or as otherwise authorized by these Terms or accompanying license (e.g. any content posted from Wikipedia, which is licensed separately), content appearing on or through the Service may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

Notwithstanding the foregoing, TallyUp grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials.


4. Permitted Commercial Use

Notwithstanding the foregoing restriction on commercial use, you may reasonably share or embed TallyUp polls for commercial purposes i.e. where you have the intent to obtain direct or indirect commercial gain from so doing, provided that neither the data, design, urls, nor the TallyUp Logo or any other TallyUp related content whatsoever are manipulated, hidden, or redesigned. You may also use the Services for other commercial purposes, such as using site filters for market research or providing data to third parties to support business activities, provided you use the TallyUp name and logo in connection with any such sharing or displaying of the TallyUp information with third parties and link clearly to the TallyUp site in all instances where such information is shared digitally and include clear directions to the TallyUp site if such information is shared offline.

TallyUp, in its sole discretion, reserves the right to determine whether the use of Services is for commercial or non-commercial purposes. Furthermore, TallyUp may revoke its permission to you or anyone to use the Services, for any reason whatsoever, and in its sole discretion.


5. User Content

TallyUp does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, "User Content") that you post to the Service. After posting your User Content to the Service, you continue to retain all ownership rights in such User Content, and you may use such User Content in any way you choose. However, by displaying or publishing ("posting") any such User Content on or through the Service, you hereby grant to TallyUp a non-exclusive (meaning you are free to license your User Content to anyone else in addition to TallyUp), fully-paid and royalty-free (meaning that TallyUp is not required to pay you for the use of the User Content that you post), with a right to sublicense (so that TallyUp is able to allow this information to be posted on third-party websites), worldwide (because the Internet and the TallyUp Services are global in reach), and irrevocable (because once the Content is incorporated into the community knowledge base, it may not be easily removable) license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content for any purpose whatsoever. Without this license, TallyUp would be unable to provide the Services.

You represent and warrant that you own the User Content posted by you on or through the Service or otherwise have the right to grant the license set forth in this section, and the posting of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content posted by you to or through the Service.

You are solely responsible for the User Content that you post on or through the Service, any material or information that you transmit to other Users and for your interactions with other Users, and the consequences of posting or publishing such User Content. TallyUp does not endorse and has no control over the User Content. TallyUp does not guarantee any confidentiality with respect to any User Content. User Content is not necessarily reviewed by TallyUp prior to posting and does not necessarily reflect the opinions or policies of TallyUp. TallyUp makes no warranties, express or implied, as to the User Content or to the accuracy and reliability of the User Content or any material or information that you transmit to other Users. TallyUp does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and TallyUp expressly disclaims any and all liability in connection with User Content.

In connection with User Content, you further agree that you will not: (a) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant TallyUp all of the license rights granted herein; (b) publish falsehoods or misrepresentations that could damage TallyUp or any third party; (c) submit text, material or any User Content that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (d) post advertisements or solicitations of business: (e) impersonate another person.

TallyUp reserves the right to remove User Content without prior notice and in its sole discretion. TallyUp may delete User Content at any time for any purpose and may or may not choose to notify you upon so doing. TallyUp assumes no responsibility for monitoring the Service for inappropriate User Content. If at any time TallyUp chooses, in its sole discretion, to monitor the Service, TallyUp nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the User submitting any such User Content.

You understand that when using the Service, you will be exposed to User Content from a variety of sources, and that TallyUp is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against TallyUp with respect thereto, and agree to indemnify and hold TallyUp, its employees, officers, directors, affiliates, service providers, and licensors, harmless to the fullest extent allowed by law related to your posting of User Content.


6. TallyUp Content, Ownership

The Service may contain content including without limitation, text, software, scripts, software code and tools, graphics, poll results, aggregated information, photos, sounds, videos, interactive features and the like ("TallyUp Content"). TallyUp Content is protected by copyright, trademark, patent, trade secret, and other laws. We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the TallyUp Content and the Services. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to you.


7. Trademarks

TallyUp, the TallyUp logo, and any other product or service name or slogan contained on the Service are our trademarks, or trademarks of our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, except with prior written permission by the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply our endorsement, sponsorship, or recommendation thereof, or vice versa.


8. Submissions

You acknowledge and agree that any materials, including but not limited to comments, suggestions, ideas, or other information, provided by you in the form of email or other submissions to TallyUp (collectively "Submissions"), are non-confidential and you hereby grant to us perpetual and irrevocable license to use your Submissions for any purpose without compensation or attribution to you.


9. Privacy Policy

We may collect registration and other information about you through the Service. Our collection and use of this information is described in the Privacy Policy available at http://www.tallyup.com/privacy.html. 


10. Copyright Policy

TallyUp does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and TallyUp will remove all User Content if properly notified that such content infringes on another's intellectual property rights.

If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

(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 copyrighted 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 that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

(d) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

TallyUp's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, 11 Beach St. 10th Floor, New York, NY 10013, email: copyrightagent@TallyUp.com,  Fax: (917) 508-4884. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to TallyUp customer service through the contact us link. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.


11. Links

The Service may contain links to third party websites that are not owned or controlled by TallyUp. TallyUp has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, TallyUp will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly release TallyUp from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the Service and to read the terms of service and privacy policy of each website that you visit.


12. Warranty Disclaimer

THE SERVICE IS PROVIDED TO YOU "AS IS." YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TALLYUP, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, LICENSORS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. TALLYUP MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SERVICE?S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND ANY  PERSONAL OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. TALLYUP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TALLYUP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.



13. Limitation of Liability

NEITHER TALLYUP NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF TALLYUP OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE MAXIMUM TOTAL LIABILITY OF TALLYUP AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS US $50. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

The Service is controlled and offered by TallyUp from its facilities in the United States of America. TallyUp makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.


14. Indemnity

You will defend, indemnify and hold harmless TallyUp, its subsidiaries and affiliates, and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys? fees) arising out of or related to your use of the Service, your violation of these Terms, or your violation of any rights of a third party. This defense and indemnification obligation will survive these Terms and your use of the Services.


15. Restrictions on Access

Notwithstanding any provision of these Terms, TallyUp reserves the right, without notice and in its sole discretion, to terminate your license to use the Service and to block, restrict, and prevent your future access to, and use of, the Services.  Additionally, TallyUp reserves the right to modify, discontinue, and restrict, temporarily or permanently, all or part of the Service without notice in its sole discretion.  Neither TallyUp nor its suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of the Service.


16. Consent to Electronic Communications

By using the Service, you consent to receiving electronic communications from TallyUp.  These communications may include notices about your account and information concerning or related to the Service.  You agree that any notices, agreements, disclosures, or other communications that TallyUp sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.


17. Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TallyUp without restriction.


18. Remedies

You agree that monetary damages may be inadequate to compensate TallyUp for your breach of these Terms. Accordingly, you agree that any such breach will cause irreparable injury to TallyUp and that, in addition to any other remedies that may be available at law, in equity or otherwise, TallyUp shall be entitled to obtain injunctive relief.


19. General

These Terms are governed by the laws of New York, without respect to its conflict of laws principles, and you agree to exclusive personal jurisdiction in New York and venue in the state and federal courts of the United States located in New York city, New York. These Terms, together with the Privacy Notice at http://www.TallyUp.com/privacy.html and any other legal notices published by TallyUp on our website or through the Service, shall constitute the entire agreement between you and TallyUp concerning your use of the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of this these Terms will be deemed a further or continuing waiver of such term or any other term, and TallyUp's failure to assert any right or provision under these Terms does not constitute a waiver of such right or provision. You and TallyUp agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

These Terms constitute the entire agreement between you and TallyUp concerning the Service.  These Terms supersede all prior agreements or communications between you and TallyUp regarding the subject matter of these Terms.

Trademark Usage Guidelines ? TallyUp, Inc.

These Guidelines provide information about the correct use of TallyUp trademarks, including the "TallyUp" name and TallyUp Logo. Your use of trademarks and logos must strictly comply with these Guidelines. Use of the TallyUp trademarks and logos other than in accordance with these Guidelines is a violation of TallyUp's rights and is prohibited. TallyUp reserves the right to revise these Guidelines from time to time, without notice.

Importance Of the TallyUp Name And Trademarks

TallyUp, the TallyUp Logo and the other TallyUp trademarks and logos and (collectively, the "TallyUp Marks") are critical elements of TallyUp's identity and are an important part of TallyUp's overall strategy to make the TallyUp community and Social Voting a cornerstone of collective intelligence gathering and a place to go for conventional wisdom. The TallyUp Marks will become widely recognized, and become positive symbols of the TallyUp experience and with your help, we will build a brand that can be relied upon to provide the best information about what our communities are thinking.

The TallyUp Marks are made available to you to be used with the Poll Widget and other technologies that allow you to post a TallyUp poll on your website. This document provides the basic style guidelines for the use of the marks to ensure consistency.


TallyUp Logos

The TallyUp Marks are available for you to copy and place on your website to identify the Content, provided you comply with the following rules:


Proper Usage Of TallyUp Trademarks and Logos

Unless you have express, prior, written permission from TallyUp:

Examples:

Correct: The TallyUp website is where you can go to express your opinion.

Incorrect: TallyUp's website is where you can go to express your opinion.

Use of ®, ™ Notices

Trademarks and Registered Trademarks - TallyUp's Marks may be registered. Use the ® symbol to indicate a registered trademark and the ™ symbol to indicate a trademark, as provided on the TallyUp artwork provided.


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