These Terms of Use (“Terms”) hereby apply to any individual, business, or entity utilizing the services of, or engaging in business transactions with, Beach Gremlins Networks Inc., dba BarLink Online, and the BarLink website or related business operations (collectively, “BarLink”), including but not limited to unregistered users, BarLink Members, Locations (as defined in the BarLink Online Location Board Display Agreement), Advertisers (as defined in the BarLink Online Advertiser Campaign Agreement), and any other parties viewing or exposed to the BarLink Online website, BarLink Location Board displays, and any User Content (collectively, “User(s)”), be it online, at physical Locations, or otherwise.
These Terms set forth the legally binding terms and conditions for use of the website at http://barlinkonline.com and the services, features, content, applications or widgets offered by BarLink (collectively “BarLink System”). By registering for and/or using the BarLink System in any manner, including but not limited to visiting or browsing the BarLink website, you agree to be bound by these Terms.
The BarLink System is offered subject to User acceptance without modification of these Terms, which also incorporate the BarLink Privacy Policy, BarLink Code of Conduct, and all other operating rules, policies and procedures that may be published by BarLink from time to time on the BarLink System, and which are thereby incorporated by reference and may be updated from time to time without notice to User. Some services offered through the BarLink System may be subject to additional terms and conditions promulgated by BarLink from time to time; Use of the BarLink System is subject to any such additional terms and conditions, which will be considered incorporated into these Terms by this reference.
1. User Profile Registration: Users may browse the BarLink System and view User Content (as defined below) without registering, but as a condition to using certain aspects of the BarLink System, Users are required to register and create a User profile. Users agree to not provide false personal information; will not create accounts for anyone but themselves; will not create more than one account; will not attempt to recreate an account if User’s account has been disabled; will not create an account if under the age of 18; will not create an account if a convicted sex offender; will keep account contact information accurate and up-to-date; will not share account password information; will not allow any other User to access User’s account; and will not take any other action that may jeopardize User’s account security. User understands that BarLink reserves the right to refuse any User’s registration or to reclaim or delete any username or profile information deemed inappropriate or potentially offensive to other Users.
2. User Content: Users own all content and information posted or otherwise contributed to the BarLink System (“User Content”) and control how it is shared. User grants BarLink a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User Content posted on the BarLink System or in connection with BarLink ("Content License"). This Content License ends when User deletes User Content or User’s account on the BarLink System, unless User Content has been shared with other Users and they have not deleted it. User understands that deleted User Content may persist in backup copies for a reasonable period of time. User understands and agrees that any and all User Content will be published to ALL Users, and User thereby allows open access and use of that information in association with User and User’s provided personal information. User understands that BarLink retains the right to modify or delete any User Content at any time and for any reason.
3. User Guarantee: User guarantees and makes a commitment to BarLink that User AND/OR User Content (1.) will not include any unauthorized commercial communications, spam, or multi-level marketing such as pyramid schemes; (2.) will not collect other User information or otherwise access BarLink by any automated means (bots, spiders, scrapers, etc.); (3.) will not attempt to upload any malicious code; (4.) will not solicit login information or access another User’s account; (5.) will not purposefully bully, harass, or intimidate any other User; (6.) will not post User Content that is hateful, threatening, pornographic, contains nudity or graphic violence, or incites violence or other socially inappropriate behavior; (7.) will not use BarLink for any behavior classified as unlawful, misleading, discriminatory, or malicious, nor do anything that might disable, overburden, or impair the regular operation of the BarLink website; (8.) will not take any action or post User Content that infringes or violates another User’s rights, intellectual property rights of any kind, or otherwise violates the law; (9.) will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the BarLink Systems; (10.) will not provide or create links to external sites that violate these Terms (11.) will not facilitate or encourage any violations of these Terms, the BarLink Code of Conduct, or the BarLink Privacy Policy.
4. Copyright Policy/Digital Millennium Copyright Act Notice: User may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights or otherwise have a valid basis under the law, including "fair use." Without limiting the foregoing, if User believes that proprietary work has been copied and posted on the BarLink System in a way that constitutes copyright infringement, please provide information consistent with the Digital Millennium Copyright Act (DMCA) to BarLink’s Copyright Agent for Notice of Claims of copyright infringement: Beach Gremlins Networks Inc., dba BarLink Online, attention: Copyright Agent, 4500 26th Ave SW, Naples, Florida, 34116. It is the intention of BarLink to fully comply with the DMCA, including the notice and "take down" provisions and to benefit from the safe harbors immunizing BarLink from liability to the fullest extent provided by law, and to the extent the notice and "take down" requirements above deviate from the requirements under the DMCA then the Notice requirements as provided by the DMCA shall control and are herein incorporated by reference.
5. Violation of Terms: BarLink retains the indisputable right to remove or modify any User Content if it violates these Terms. Likewise, as a consequence for violating these Terms, BarLink retains the right to suspend any User account, block User profiles, block User IP addresses, deny Users creating new User profiles, block User SMS/text phone numbers and block unidentified SMS/text phone numbers. Blocked accounts, IP addresses, and SMS/text phone numbers will be denied access from the entire BarLink System, not just a specific Location Board. Failure to abide by these Terms on any count may void User of any BarLink System use rights on a system-wide basis; BarLink makes no guarantee that blocked accounts, IP addresses or SMS/text phone numbers will again be provided access on any level or at any future point in time; such restrictions may remain indefinitely at the sole discretion of BarLink.
6. Termination: BarLink may terminate User access to all or any part of the BarLink System at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with User profile and membership. If User wishes to terminate their account, they may do so by following the instructions on the BarLink System. Any fees paid to BarLink are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
7. User Feedback: BarLink always welcomes and appreciates feedback from our Users. Any User providing feedback recognizes that BarLink may use it without compensation obligation to User, just as User is not obligated in any way to provide feedback to BarLink.
8. Promotions: Excepting those offered by Location Owners or their agents via a related Location Board, Users shall not post or offer any contest, sweepstakes, or giveaway of any kind without BarLink’s prior written consent. Locations offering promotions, and other Users receiving consent to do so, accept full responsibility for any promotions or offers and guarantee the rules will adhere to BarLink Terms Of Use, BarLink Privacy Policy, BarLink Code of Conduct, BarLink Online Location Board Display Agreement, BarLink Online Advertiser Campaign Agreement, and any and all applicable laws.
9. Payments: Users shall be responsible for any charges resulting from User purchases of any BarLink service or product and shall pay all charges in U.S. Dollars. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. User is responsible for paying (1.) all taxes, government charges, and (2.) reasonable expenses and attorneys fees BarLink incurs collecting late amounts. To the fullest extent permitted by law, User waives all claims relating to charges unless claimed within sixty (60) days after the charge (this does not affect User’s credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at the discretion of BarLink and may be provided in the form of a credit toward future purchase(s). Nothing in these Terms or may obligate BarLink to extend credit to any party. User acknowledges and agrees that any credit card and related billing and payment information that User provides to BarLink may be shared by BarLink with companies who work on BarLink's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to BarLink and servicing User’s account. BarLink may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. BarLink shall not be liable for any use or disclosure of such information by such third parties.
10. Website Operation: BarLink does not represent or warrant that the function contained in the BarLink website or the operation of the BarLink System will be uninterrupted or error free, and therefore will not be liable to Users for any damages, including any lost profits or other incidental, consequential or special damages arising out of the operation of, or inability to operate web pages or website. In the event of a failure or suspension of the BarLink System, or an individual Location Board, due to computer or network malfunction, Location negligence, congestion, repair, strike, accidents, fire, flood or any other cause or contingencies beyond the control of BarLink, it is understood and agreed that upon resumption of BarLink System, or individual Location Board, these Terms shall be continued, and in any event no liability for damages shall be incurred by BarLink by reason of such suspension.
11. Website Content: Users understand that all information, data, text, software, music, sound, photographs, graphics, videos, user postings, messages or other materials (collectively, "Website Content") contained on the BarLink website, whether publicly posted or privately transmitted, are the sole responsibility of the User from which such Website Content originated. BarLink does not control the Website Content posted and, as such, does not guarantee the accuracy, integrity, sensitivity or quality of such Website Content. Under no circumstances will BarLink be liable in any way for any Website Content, including, but not limited to, any errors or omissions in any Website Content, or any loss or damage of any kind incurred as a result of any Website Content posted, displayed, emailed, or otherwise transmitted via the BarLink System. User understands that there are also risks of interacting with or exposing User Content to underage persons or people acting under false pretense. By using this website, User agrees to accept such risks and User agrees that BarLink is not responsible for the acts or omissions of Users on the BarLink System.
12. Operational Matters: BarLink reserves the right in its sole discretion to determine all matters concerning the configuration of hardware, software, telecommunications, system components, advertising categories, and other administrative or operational issues for the BarLink System and physical display of Location Boards as it deems necessary or helpful in the normal course of business.
13. SMS/Text Messaging: BarLink’s SMS/Text functions are governed by the CAN-SPAM act as enacted by congress in 2003. User understands that the BarLink System is heavily reliant on SMS/Text messaging, and therefore, by agreeing to these Terms and providing a phone number for SMS/Texting purposes during the User registration process, User thereby grants BarLink express consent to send User SMS/Text messages via the provided phone number and from the BarLink System. User retains the right to discontinue receiving SMS/Texts at any time from the BarLink System on that number by removing the number from User’s online profile, or by texting STOP as a response to any system message. As defined in the BarLink Privacy Policy, all User information, including phone numbers, is not shared with ANY third parties outside of the BarLink System, however User understands that SMS/Text marketing campaigns may be initiated by Locations or Advertisers from within the BarLink System.
14. Proprietary Rights. BarLink owns all elements of the BarLink System and pertinent materials contained in it. Nothing herein grants Users any right, title or license in either party's intellectual property rights, except only that User grants BarLink the limited, nonexclusive license to display User Content. Nothing herein grants User any right to publish or use any trademark, servicemark, logo or name related to BarLink, or any Location, in any advertisement, sales promotion, press release, or any other public medium without BarLink’s prior written consent. Nothing herein imposes any confidentiality restriction on either party.
15. Enforcement: Failure by BarLink to enforce any Terms of this Agreement shall not be considered a waiver of such Terms.
16. Legal Fees: In the event it becomes necessary for BarLink to retain the services of an attorney for purposes of enforcing or defending any part of these Terms, the non-prevailing party in any related legal matters shall be responsible for ALL legal fees for the parties involved.
17. Member Disputes: BarLink does not solicit or control the information provided by Users that is made available through the BarLink System. Users may find other User Content to be offensive, harmful, inaccurate and/or deceptive, or in some other way disagreeable. If so, it is the User’s responsibility to report such User Content by clicking on the “report this” links or contacting BarLink customer service through links available on the BarLink System web pages. Users are expected to use caution, common sense, and safety when using the BarLink System. Users are solely responsible for interaction with other Users. Because BarLink is not involved in User interactions, in the event that a User has a dispute with one or more Users, Users releases BarLink, including its officers, directors, agents, subsidiaries and employees, from claims, demands and damages actual and consequential, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. BarLink reserves the right, but has no obligation, to monitor disputes between Users and take appropriate action, as defined herein, if any User’s behavior violates these Terms of Use.
18. Other Disputes: User will resolve any claim, cause of action or dispute ("Claim") with BarLink arising out of or relating to these Terms or BarLink exclusively in a state or federal court located in Collier County, Florida. The laws of the State of Florida will govern these Terms, as well as any claim that might arise between User and BarLink, without regard to conflict of law provisions. User agrees to submit to the personal jurisdiction of the courts located in Collier County, Florida for the purpose of litigating all such Claims. If any claim is brought against BarLink related to User’s actions or User Content on BarLink, the associated User(s) will indemnify and hold BarLink harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such Claim.
19. Disclaimer and Limitations of Liability: Use of the BarLink System and physical Locations that display a BarLink Location Board is done at User’s own risk. BARLINK IS PROVIDING THE BARLINK SYSTEM "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BARLINK DOES NOT GUARANTEE THAT THE BARLINK WEBSITE OR LOCATION BOARDS OR THE PHYSICAL ESTABLISHEMENTS DISPLAYING BARLINK LOCATION BOARDS WILL BE SAFE OR SECURE. BARLINK IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, ONLINE OR OTHERWISE, AND USER HEREBY RELEASES BARLINK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM USER HAS AGAINST ANY THIRD PARTIES. BARLINK WILL NOT BE LIABLE TO USER FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE BARLINK SYSTEM, EVEN IF BARLINK HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. Miscellaneous: These Terms constitute the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in accepting these Terms, except as expressly set forth herein, and any conflicting or additional terms contained in any other documents or oral discussions are void. User may grant approvals, permissions, extensions and consents by email, but any modifications by User to these Terms must be made in a writing executed by both parties. Any notices to BarLink must be sent to Beach Gremlins Networks Inc., DBA BarLink Online, 4500 26th Ave SW, Naples, Florida, 34116, USA, with a copy to Legal Department, via confirmed facsimile, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of these Terms will remain in full effect. User may not assign any of its rights hereunder and any such attempt is void. All of BarLink’s rights and obligations under these Terms are freely assignable by BarLink in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
10/19/2010
