BY ACCESSING OR USING THE WEB SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE WEB SITE.
THE DC RESERVES THE RIGHT, AT ANY TIME, WITHOUT NOTICE, AND AT ITS SOLE DISCRETION, TO UPDATE OR MODIFY THIS AGREEMENT BY POSTING SUCH CHANGE, UPDATE, OR MODIFICATION ON THE WEB SITE. ANY SUCH UPDATE OR MODIFICATION WILL BE EFFECTIVE IMMEDIATELY UPON POSTING.
ANY MATERIAL (REALLY IMPORTANT) CHANGES TO THIS AGREEMENT WILL ONLY APPLY PROSPECTIVELY. YOUR CONTINUED ACCESS OR USE OF THE WEBSITE AND/OR ANY SERVICES OR FEATURES OFFERED ON THE WEBSITE MEANS THAT YOU ACCEPT ANY MODIFICATIONS TO THIS AGREEMENT.
THE DC also may in its sole discretion and at any time discontinue providing the Website or services available through the Website, or any part thereof, with or without notice. You agree that any termination of your access to the Website or Content, or your User Content under any provision of this Agreement, may be effected without prior notice to you, and you acknowledge and agree that THE DC may bar any further access to the Website, including the Content and your User Content. Further, you agree that THE DC shall not be liable to you or any third-party for any termination of access to the Website.
NOTE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE DC. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
I. OWNERSHIP OF CONTENT AND INTELLECTUAL PROPERTY
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, computer code, and content (Content) published on the Website is protected by applicable intellectual property laws and is owned or licensed by THE DC or its licensors.
THE DC grants you a limited right to access and use the Website. You may not modify, create a derivative work, display, distribute, perform publicly, or in any way exploit, in whole or in part, any of the Content or software contained on, or comprising, the Website without seeking prior written permission from THE DC.
You are also restricted from using any automated or manual device or process to copy, monitor, index or data mine the Website. THE DC, its respective logos, trade dress, and the graphics and layout of the Website are the registered and/or unregistered service marks, trademarks, and/or trade dress of THE DC and may not be copied, imitated or used, in whole or in part, without THE DCs prior written permission.
All other trademarks, product names, and company names or logos mentioned on the Website are the property of their respective owners.
THE DC reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. You agree that THE DC shall not be liable to you or any third party for any modification, suspension or discontinuance of the Website.
You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You may not use anyone elses username and password at any time. THE DC cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. You agree to notify us if any of your log-in information is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your account on this Website or if you know of any other breach of security in relation to this Website.
III. INTERACTIVE FEATURES; USER CONTENT
The Website provides information for the benefit of users. Certain areas of the Website may allow users to post, upload, submit or otherwise make available content such as blogs, profiles, photo albums, video galleries opinions, messages, comments, graphics, sounds or material (User Content). However, THE DC does not guarantee the truthfulness, accuracy, or validity of any User Content on the Web Site.
You may not submit any User Content that is obscene, defamatory, harassing, threatening, pornographic, illegal, or would violate the rights of others, or that otherwise violates the User Conduct section of this Agreement.
THE DC reserves the right to refuse, delete or remove any User Content that it considers inappropriate or otherwise objectionable, in its sole discretion. THE DC, however, assumes no responsibility for monitoring or policing the Website for inappropriate User Content or conduct. If at any time THE DC chooses, in its sole discretion, to monitor the Website, THE DC will assume no responsibility for the User Content on the Website, no obligation to modify or remove any inappropriate or otherwise objectionable User Content on the Website, and no responsibility for the conduct of any user submitting such User Content.
By submitting User Content to or through the Website, you expressly grant THE DC a worldwide, non-exclusive, royalty-free, fully paid-up, perpetual, irrevocable, transferrable license (including the right to sublicense through multiple tiers) to use, publish, transmit, modify, reproduce, display, distribute, process, adapt, publicly perform, publicly display, prepare derivative works from, and distribute your User Content, derivatives, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use your User Content.
You acknowledge that you are solely responsible for the User Content you post on or through the Website and the consequences of posting such User Content. By posting such User Content, you represent and warrant to us that you have the necessary licenses, rights, consents and permissions to enable inclusion of the User Content in the manner contemplated by this Website and this Agreement. You agree that you will not post User Content 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 such User Content. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any User Content posted by you to or through this Site.
THE DC may use e-mail validation or other confirmation or validation methods to reduce comment spam.
IV. USER CONDUCT
By accessing and using the Website, you agree that you will: (i) comply with all applicable local, state, national, and international laws and regulations that govern your use of the Website; and (ii) provide truthful and accurate information about your identity if you choose to register on the Website.
You also agree that you will NOT:
This list of prohibitions provides examples and is not complete or exclusive. THE DC reserves the right to (a) terminate access to your account, your ability to post to this Website and (b) refuse, delete or remove any User Content with or without cause and with or without notice, for any reason or no reason, or for any action that THE DC determines is inappropriate or disruptive to this Website or to any other user of this Website. The DC may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at our discretion, The DC will cooperate with law enforcement agencies in any investigation of alleged illegal activity.
V. CHILDREN UNDER 13
The Website is not directed to children under 13, and THE DC does not knowingly collect or solicit personally identifiable information from or about children under 13. If we discover that we have received any personally identifiable information from a child under 13, we will delete such information from our servers and records promptly.
A. Copyright Infringement Notification
THE DC respects the intellectual property rights of others. If you believe that the Website contains Content or material that infringes a copyright you own, you may file a Notification of Claimed Infringement (Notification) with our designated Digital Millennium Copyright Act (DMCA) agent as specified below:
Attn: Copyright Agent
The Daily Caller
1050 17th Street NWSuite 900
Washington, DC 20036
To be effective under the DMCA, the Notification must be a written communication sent to THE DCs designated agent and must include the following information:
Upon receipt of a valid Notification from a copyright owner, which contains all of the required information described above, THE DC will remove or disable access to the material contained on the Website that is alleged to be infringing.
B. Counter Notification
If material or content that you have created, developed, or posted has been removed or disabled by THE DC after it receives a Notification meeting the requirements described above, you may ask that the content be restored by sending THE DC a Counter Notification. The Counter Notification must include substantially all of the following:
After receipt of a valid Counter Notification meeting the requirements described above, THE DC is required to:
VII. ADVERTISING AND PROMOTIONS
Third parties not affiliated with THE DC may also offer contests, sweepstakes, or promotions on the Website. If you choose to correspond with, order or pay for goods and services, or participate in contests, sweepstakes, or promotions offered by third parties, there will be other terms, conditions, warranties or representations that will apply. You agree that THE DC shall not be responsible or liable for any loss or damage of any sort related to your dealings with such third parties.
VIII. INDEMNIFICATION/ DISCLAIMER OF WARRANTIES AND LIABILITY
You agree to indemnify and hold THE DC, its subsidiaries, affiliated companies, officers, directors, shareholders, predecessors, successors interest, agents, employees, partners and licensors, harmless from and against any claim, demand, loss, liability, or expense, including reasonable attorneys fees, made by any third party due to or arising out of content you submit, post, transmit or otherwise make available through the Website, your access or use of the Website, your violation of this Agreement, or your violation of any rights of a third party.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED AS IS AND AS AVAILABLE, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE DC DISCLAIMS ALL WARRANTIES WITH REGARD TO THE INFORMATION PROVIDED BY THE WEBSITE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE DC PROVIDES NO WARRANTY WITH RESPECT TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, OR RELIABILITY OF THE WEBSITE OR THE CONTENT PROVIDED ON THE WEBSITE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE DC BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, LOST PROFITS OR OTHER DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR LOSS OF THE DATA CONTAINED WITHIN THE WEBSITE. IN STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE DCS LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
IX. VIOLATION OF THIS AGREEMENT; TERMINATION OF ACCESS
You agree that THE DC may, in its sole discretion and without prior notice, terminate your access to the Website and/or block your future access to the Website if we determine that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Website. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to THE DC, for which monetary damages would be inadequate, and you consent to THE DC obtaining any injunctive or equitable relief that THE DC deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies THE DC may have at law or in equity.
THE DC may disclose any information we have about you if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Website, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) THE DCs rights or property, or the rights or property of visitors to or users of the Website, including THE DCs customers.
If THE DC does take any legal action against you as a result of your violation of this Agreement, THE DC will be entitled to recover from you, and you agree to pay, all reasonable attorneys fees and costs of such action, in addition to any other relief granted to THE DC. You agree that THE DC will not be liable to you or to any third party for termination of your access to the Website as a result of any violation of this Agreement.
You are granted a limited, revocable, non-exclusive right to create a hyperlink to the Website on the condition that the link does not portray THE DC in a false, misleading, derogatory or otherwise defamatory manner.
XI. LINKS TO THIRD PARTY WEBSITES
The Website may contain links to other websites owned or operated by non-affiliated third parties. THE DC is not responsible for the content provided by or privacy practices of these other websites. When you visit such websites â€“ even if you get there by clicking on links provided on this Website â€“ this Agreement no longer applies. THE DC is not responsible for your access to and use of such linked websites, including the use of your personal information by such linked websites.
If you send or transmit any communications, comments, questions, suggestions, or related materials to THE DC, whether by letter, email, telephone, or otherwise (collectively, Feedback), suggesting or recommending changes to the Site, the Services or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and THE DC is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that THE DC is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XIII. Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customers satisfaction by contacting us at TOU@dailycaller.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and THE DC. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and THE DC shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys fees).
For the purpose of this Provision, THE DC means THE DC and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term Dispute means any dispute, claim, or controversy between you and THE DC regarding any aspect of your relationship with THE DC, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). Dispute is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as THE DCs licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give THE DC an opportunity to resolve the Dispute. You must commence this process by mailing written notification to The Daily Caller, Legal Department 1050 17th Street NW, Suite 900Washington, DC 20036, TOU@dailycaller.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If THE DC does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or THE DC may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the Opt-Out Deadline).
You may opt out of this Provision by mailing written notification to The Daily Caller, Legal Department, 1050 17th Street NW, Suite 900, Washington, DC 20036, TOU@dailycaller.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with THE DC through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with THE DC. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration (or small claims court as designated above).
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or THE DC may initiate arbitration proceedings. The American Arbitration Association (AAA), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAAs Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAAs Commercial Arbitration Rules will apply. In either instance, the AAAs Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and this Agreement concern interstate commerce, the Federal Arbitration Act (FAA) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration“ You or THE DC may initiate arbitration in either Wilmington, Delaware or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, THE DC may transfer the arbitration to Wilmington, Delaware in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs â€“ THE DC will pay all arbitration filing fees and arbitrators costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with THE DC as provided in the section above titled Pre-Arbitration Claim Resolution and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one persons claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and THE DC specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and THE DC are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and THE DC might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with THE DC or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if THE DC makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require THE DC to adhere to the language in this Provision if a dispute between us arises.
XIV. GOVERNING LAW
This Agreement shall be governed in accordance with the Federal Arbitration Act, the laws of the State of Delaware, and applicable federal laws, without regard to choice or conflict of law provisions. Except for disputes subject to arbitration as described above, you agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in Wilmington, Delaware for resolution of any disputes arising out of or relating to this Agreement or your use of the Website.
XVI. WAIVER AND SEVERABILITY OF UNENFORCEABLE PROVISIONS
If THE DC does not exercise or enforce any right under this Agreement, it doesnt mean that it waives such right. Likewise, if a court holds that any portion of this Agreement is unenforceable, that portion shall be deemed severable from rest of this Agreement and the fact that it is unenforceable will not affect the validity and enforceability of the remaining provisions.
XVII. OPINION DISCLAIMER; NO AGENT RELATIONSHIP
The views expressed in the articles labeled Opinion on this domain are those of the authors alone. They do not represent the views and opinions of THE DC, or its staff.
XVIII. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between you and THE DC with regard to your use of the Website. Any and all other written or oral agreements or understandings previously existing between you and THE DC with respect to your use of the Web Site are hereby superseded and canceled. THE DC will not accept any counter-offers to this Agreement, and all such offers are hereby categorically rejected.
If you have any questions about this Agreement, please contact us by e-mail at:
The Daily Caller, Inc.
1050 17th Street NW
Washington, DC 20036
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE
Last Updated: September 14, 2016