Terms and Conditions

IMPORTANT NOTICE: PLEASE READ THESE TERMS CAREFULLY BEFORE USING VITAL MEDIA NETWORK™ AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 26.

1. PREAMBLE

The following Terms of Service (“Terms”) set forth the terms and conditions of the agreement between you, an individual user (“You”), and Vital Media Network, Inc. (“Vital Media Network™”), d/b/a Vital MTB® and Vital MX®,  in conjunction with Vital Media Network™’s offering of online content, an online store, and interactive fantasy sports contests (“the Service” or “the Services”) through our websites, VitalMediaNet.com, VitalMTB.com and VitalMX.com, and apps (collectively, the “Site”), and these Terms govern your rights and responsibilities with respect to your use of the Service.

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 26

2. THE SERVICE

Vital Media Network™ will provide you with a number of different services, which may include access to view online content, an online store, and interactive fantasy sports contests. Further information about each specific service, including your obligations, with respect to each specific service appears below:

• Online Store: In our online store, merchandise is available for purchase, with availability and prices of such merchandise subject to change at any time prior to purchase. You may return merchandise received from us within thirty days for a full refund or exchange; however, if you wish to exchange merchandise, you must contract us at support@vitalmedianet.com to confirm the availability of the merchandise you wish to obtain in the exchange.  If you wish to return a purchase and obtain a refund, you must return the merchandise with a copy of your confirmation message, within the allotted 30 day time period to the following address: Merchandise Returns, Vital Media Network, Inc., 1795 Harvard Avenue, Suite C, #4011, Irvine, CA 92614.  Unless the merchandise is defective, we do not offer refunds or exchanges on used or damaged merchandise.
• Interactive Fantasy Sports Contests: Our interactive fantasy sports contests include contests in which you must select players through the use of your skill and knowledge of professional sports.  Winners are determined by Vital Media Network™ based on the ability to predict the performance of professional athletes over the course of multiple, real-world sporting events that take place over the course of a given real-world game or games. Vital Media Network™ shall have the sole discretion of determining its game rules and selecting winners of these contests.  Further, Vital Media Network™ shall be the sole arbiter of disputes over who wins each contest.

With respect to all aspects of the Service, you agree that, by providing a payment method, you represent and warrant that you are authorized to use the designated payment method and you authorize us and our third-party payment processor to change for all purchases including any applicable taxes and other charges. You are responsible for, and agree to pay, all such charges.  If your payment cannot be processed or if any amounts you authorize us to charge to your payment method are reversed or charged back from any reasons, we may cancel or suspend any undelivered portion of your purchase, make subsequent attempts to charge your payment method, and use any other lawful means to collect payment on any outstanding amounts due to us. With respect to entering into any transactions involving the Online Store and/or Interactive Fantasy Sports Contests, you represent you are of the age of majority in your jurisdiction of residence for the activity in which you are engaging

3. ACCEPTANCE OF TERMS

By accessing the Site and using any part of the Site or Service, you agree to be bound by these Terms.  It is your responsibility to review these Terms regularly to determine whether they have changed.  If you do not agree to all of the Terms, then you may not access the Site or attempt to use our Service. 

4. TERMS REPRESENT ENTIRE AGREEMENT

These Terms, together with our Privacy Policy, Cookie Policy, Digital Millennium Copyright Act Policy, as may be updated from time to time, and further legal notices and disclosures which we may issue (collectively, the “Terms”) constitute the entire agreement between you and Vital Media Network™ with respect to the Site, and these Terms supersede any prior agreements, oral or written, between you and Vital Media Network™.  A provision of these Terms may be waived only by written instrument executed by the party entitled to the benefit of such provisions.  The failure of Vital Media Network™ to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

5. MODIFICATION OF TERMS

Except for Section 26 providing for binding arbitration and waiver of class action rights, Vital Media Network™ reserves the right, at its sole discretion, to modify or replace the existing Terms of Service at any time.  Should any change in Terms occur, you shall be responsible for reviewing and becoming familiar with any such modifications.  Your continued use of the Vital Media Network™ Site and Service upon any change or modification of the Terms constitutes your constructive acknowledgement and acceptance of these modifications.

6. USER ELIGIBILTY

By using our Site or Service, you hereby represent and warrant that you are a natural person and you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in the Terms of Service and to abide by and comply with these terms.

Further, for those users who seek to enter into any of our interactive fantasy sports contests, you represent and warrant that:

1. You are the age of majority in your jurisdiction of residence for the activity in which you are engaging (for fantasy sports contests with entry fees and prizes, this is at least 18 years of age in most states, 19 years of age in Nebraska and Alabama, and 21 years of age in Arizona, Iowa, Massachusetts and Louisiana).
2. You are an individual (corporate entities and similar organizations are not eligible to enter our interactive fantasy sports contests).
3. For contests that include both entry fees and prizes, you are a citizen or resident of the United States of America, and you are physically located at the time of deposit, game entry, and all roster changes within the borders of the United States of America, exclusive of its territories. (For purposes of clarity, citizens and residents of Puerto Rico are not eligible to enter any fantasy sports contests that include entry fees and prizes).
4. For contests that include both entry fees and prizes, you have an address in the United States of America in a state where it is legally permissible and allowable pursuant to these Terms of Service for you to play a contest of the game format you seek to enter. (For purposes of clarity, citizens and residents of Puerto Rico are not eligible to enter any fantasy sports contests that include entry fees and prizes).
5. For contests that include both entry fees and prizes, YOU ARE NOT PHYSICALLY LOCATED IN ANY OF THE FOLLOWING STATES AT ANY POINT OF TIME RELATED TO PARTICIPATING IN THE AFOREMENTIONED CONTEST (THIS INCLUDES, AMONG OTHER THINGS, THE POINT OF SUBMITTING ENTRY FEES, THE POINT OF MAKING PLAYER SELCTIONS, AND THE POINT OF SEEKING PAYMENT OF WINNINGS): ALABAMA, ARIZONA; ARKANSAS; COLORADO; CONNECTICUT; DELAWARE; FLORIDA; GEORGIA; HAWAII; IDAHO; INDIANA; IOWA; LOUISIANA; MARYLAND: MASSACHUSETTS; MAINE; MICHIGAN; MISSISSIPPI; MISSOURI; MONTANA; NEVADA; NEW HAMPSHIRE; NEW JERSEY; NEW YORK; OHIO; PENNSYLVANIA; TENNESSEE; TEXAS; VERMONT; VIRGINIA OR WASHINGTON. IN ADDITION, YOU ARE NOT A RESIDENT OF PUERTO RICO.
6. You are not a principal, operator, officer, employee, director, contractor or agent of Vital Media Network™, nor are you an immediate family member or proxy on behalf of any operator, officer, employee, director, contractor or agent of Vital Media Network™ in any contest available to the general public in which a prize is offered.  (The term “immediate family member,” as defined herein, shall include parents, children, spouses, siblings, or any other person residing in the same household of an operator, officer, employee, director, contractor or agent).
7. You are not a professional or amateur athlete whose individual statistics or performance may be used to determine any part of the outcome of a fantasy sports contest, nor are you a sports agent, a team employee, a referee, or a league official associated with an athletic competition that is the subject of fantasy sports contests.  You also are not either an immediate family member of any of the aforementioned individuals or a proxy acting on their behalf.
8. You will establish only one account to participate in the Service offered on the Vital Media Network™ Site, and only you will operate the account.
9. If you are provided with a Vital Media Network™ account, you will use your Vital Media Network™ account only for its intended purposes.  This means, among other things, you will not deposit money into your account that you do not intend to use to enter contests within the reasonable near future, and you will not attempt to fund your account or withdraw funds from your Vital Media Network™ account for any purpose that may violate state or federal law or otherwise be deemed as fraudulent.
10. You will abide at all times by these Terms and any other agreements between you and Vital Media Network™
11. You are not subject to backup withholding tax because: (a) you are exempt from backup withholding, or (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding.

If any of the above representations and warranties are not met or you fail to provide any requested information in a timely manner to allow us to conduct a check to ensure the accuracy of your representations, in addition to any other rights and remedies available under law or equity, Vital Media Network™ reserves the right to suspend or terminate your account and to revoke or withhold the awarding of any prizes associated with your account.

Also, in the event that Vital Media Network™ discovers that you have opened more than one account, in addition to any other rights that Vital Media Network™ may have, Vital Media Network™ reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the award of any prizes.

7. USER CONDUCT

As a condition of use, you agree not to use the Site or Service for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Vital Media Network™. By way of example, and not as a limitation, you agree to conduct yourself with good sportsmanship at all times, and not to purchase multiple teams within a given fantasy sports contest unless the contest affirmatively allows for multiple entries by the same user, and not to engage in Collusion with other users to win any contest (the term “Collusion” shall include, but is not limited to, working together with another user to better any one entry at the expense of another).

In addition, you agree not to:

• abuse, harass, impersonate, intimidate or threaten Vital Media Network™, other Vital Media Network™ users, or other community members;
• use the Site for any unauthorized purpose, including for any commercial purpose, or in violation of any applicable law, including intellectual property laws;
• post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Contest participant;
• use the Site or the Service for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
• engage in any conduct likely to deceive or defraud any person, including (without limitation) providing any false, inaccurate, or misleading information with the intent to unlawfully obtain the property of another or to provide knowingly or recklessly false information in a way that causes inaccuracy to the Service;
• submit any information to the Site or Service (including User Content) that you know or should know to be untrue or otherwise with an intent to deceive or defraud any person or party;
• introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Site, or Contest participants;
• attack the Website or the Service via a denial-of-service attack or a distributed denial-of-service attack;
• create or submit unwanted email ("Spam") or other form of digital messaging to any other Vital Media Network™ user(s);
• encourage or induce any third party to engage in any of the activities prohibited under these Terms; and
• otherwise attempt to interfere with the reasonably intended and proper working of the Site or Service.

Further, you agree not to submit comments discussing or linking to affiliate programs, multi-level marketing schemes, personal business ventures, or off-topic content; not to post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; and not to use any robot, spider, scraper or other automated means to access the Site for any purpose (except for RSS feed access) without our express written permission.

Finally, you agree that you will not: (1) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (2) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (3) bypass any measures Vital Media Network™ may use to prevent or restrict access to the Site.

Violation of our rules may result in the removal of your content from the Site and/or the revocation of your access to the Service. You acknowledge and agree that Vital Media Network™ may remove any User Content and terminate any user’s access to the Service at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content).  IN ADDITION, ANY ATTEMPT BY A USER TO DELIBERATELY DAMAGE THE SITE OR SERVICE OR TO UNDERMINE THE LEGITIMATE OPERATION OF OUR CONTESTS IS A VIOLATION OF CRIMINAL AND CIVIL LAWS, AND SHOULD SUCH AN ATTEMPT OCCUR, VITAL MEDIA NETWORK™ RESERVES THE RIGHT TO SEEK DAMAGES FROM ANY SUCH USER TO THE FULLEST EXTENT AVAILABLE BY LAW.  YOU FURTHER CONSENT TO ENTRY OF AN INJUNCTION AGAINST YOU TO BAR ANY SUCH THREATENED OR ACTUAL ATTEMPT, WITHOUT THE NEED FOR VITAL MEDIA NETWORK™ TO POST BOND.

To report abuse of the Site or Service, or violation of these Terms, please contact us at support@vitalmedianet.com.

8. USER CONTENT

You understand that all content created or posted by users of either the Site or Service (“User Content”), including but not limited to profile information and communications with other users, whether privately transmitted or made publicly available, is the sole responsibility of the person from which such User Content originated. This means that you are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Site. Under no circumstances will Vital Media Network™ be liable in any way for any User Content uploaded, posted, shared, emailed, transmitted or otherwise made available via the Site.

You represent that you will not use the Site or Service to post, share, email, transmit, or otherwise make available via the Site, or cause to be posted, shared, emailed, transmitted, or otherwise made available via the Site, any User Content that is: infringing, libelous, defamatory, abusive, offensive, obscene, pornographic, vulgar, or otherwise in violation of any law or right of any third party, including, without limitation, any content constituting or encouraging conduct that would constitute a criminal offense, or give rise to civil or criminal liability; or that infringes upon the intellectual property rights, privacy rights, or publicity rights, of Vital Media Network™ , its users, or any third party.  You agree at all times to defend, indemnify and hold harmless Vital Media Network™ , its affiliates, successors, transferees, assignees, and licensees, and its respective parent and subsidiary companies, agencies, associates, officers, directors, members and employees of each, from and against any and all claims, causes of action, damages, liabilities, costs and expenses, including legal fees, arising out of or related to your breach of any obligation, warranty, representation, or covenant set forth herein.

You acknowledge that Vital Media Network™ may or may not pre-screen User Content, but that Vital Media Network™ and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, and/or move any User Content available via the Site. Without limiting the foregoing, Vital Media Network™ and its designees shall have the right (but not the obligation) to remove any User Content that violates these Terms or is otherwise objectionable in Vital Media Network™ ’s sole discretion. You understand that by using the Site, you may be exposed to User Content that you may consider offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Content. You further acknowledge and agree that you bear the sole risk of reliance on any content available on or through the Site.

With respect to User Content that you submit or make available on the Site, you grant Vital Media Network™ a perpetual, irrevocable, fully sub-licensable and transferable, worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part) and to incorporate such User Content into other works in any format or medium now known or later developed.

You are solely responsible for your interactions with other users of the Site. Vital Media Network™ reserves the right, but has no obligation, to monitor disputes between you and other users.

9. RIGHTS TO USE OF YOUR PERSONAL INFORMATION

By using this Site or Service, you agree to provide Vital Media Network™ with a perpetual, irrevocable, fully sub-licensable and transferable, worldwide, royalty-free, non-exclusive license to use, for any purpose, any information provided by you on our Site.  Specifically, you consent to the use of your name, voice, likeness, and photograph in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected Contest and/or other Contests facilitated by Vital Media Network™, unless otherwise prohibited by law.  The types of information we collect, and how we use, store and share that information is further described in our Privacy Policy.

Contest winners agree that, from the date of notification of their status as a potential winner and continuing until such time when notified that they no longer need to do so, they will make themselves available to Vital Media Network™ for publicity, advertising and promotional activities relating to any contest in which they participate.

10. REGISTRATION FOR ACCOUNT

In order to use aspects of our Site or Service, you must register for an account. By registering as a user, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”) and to maintain and promptly update the Registration Data to keep it accurate, current and complete.  Furthermore, you will not take any steps to mask your identity, location or demographic information.  If you provide any information that is inaccurate, not current or incomplete, or Vital Media Network™ has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Vital Media Network™ may deny you access to areas requiring registration, at its sole discretion.

11. ACCOUNT PASSWORD AND SECURITY

At the time of registering for an online account, you must provide a valid email address and supply a username and password to be used in conjunction with your account. Many portions of the Site require registration for access.  You are responsible for maintaining the confidentiality of your username and password, and are fully responsible for all uses of your username and password, whether by you or others.  You agree to (a) keep your username and password confidential and not share them with anyone else; (b) immediately notify Vital Media Network™ of any unauthorized use of your username and password or account or any other breach of security; and (c) use only your username and password to access the Site’s Restricted Areas.  IF THERE IS UNAUTHORIZED USE OF YOUR ACCOUNT, YOU WILL BE LIABLE FOR THE LOSSES INCURRED BY YOURSELF, VITAL MEDIA NETWORK™ AND OTHERS DUE TO ANY UNAUTHORIZED USE.

12. COMMUNICATIONS AND DISCLOSURES

As a result of your registration for the Service, you may receive certain commercial communications from Vital Media Network™.  You understand and agree that these communications are part of your registration, and that you may opt out of receiving these communications at any time by either using the unsubscribe functionality or sending an email to support@vitalmedianet.com.  You may not opt out from receiving transactional messages concerning your account, Contest entries, and/or purchases.

You acknowledge, consent and agree that Vital Media Network™ may access, preserve and disclose your account information and content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary: (i) to comply with legal process; (ii) to enforce these Terms of Service; (iii) to respond to claims that any content violates the rights of third parties; (iv) to respond to your requests for customer service; (v) to protect the rights, property, or personal safety of Vital Media Network™ , its Users and the public; or (vi) otherwise, in accordance with the terms of our Privacy Policy.

13. CANCELLATION OF INTERACTIVE FANTASY SPORTS CONTESTS AND DISQUALIFICATION OF USERS

(a)       If a contest in which users must pay an entry fee does not fill all of the contest’s entry slots, Vital Media Network™, in its sole discretion, may elect to refund all entry fees for that contest and cancel the contest in its entirety. The decision as to whether to cancel an unfilled contest lies solely with Vital Media Network™, and Vital Media Network™ shall serve as sole the sole and final arbiter of any such decision.

(b)       Vital Media Network™, furthermore, in its sole discretion, may disqualify any entrant from the Site or Service, refuse to award fantasy points or prizes and require the return of any prizes, if an entrant engages in conduct Vital Media Network™ deems to be improper, unfair or otherwise adverse to the operation of the Site or Service or in any way detrimental to other entrants.  Improper conduct includes, but is not limited to: falsifying personal information required to use the Service or to claim a prize; accumulating, or attempting to accumulate, points or prizes through unauthorized methods such as automated scripts or other automated means; tampering with the administration of the Service or trying to in any way tamper with the computer programs associated with this Service; obtaining other entrants’ information and spamming other entrants; engaging in Collusion with other contest participants; abusing the Vital Media Network™ Site in any way; or using language that in the sole discretion of Vital Media Network™ is deemed offensive, intimidating, or in violation of the spirit of building a healthy and friendly fantasy sports environment.  You further acknowledge that the forfeiture and/or return of any prize shall in no way prevent Vital Media Network™ from pursuing criminal or civil proceedings in connection with such conduct.

14. TECHNICAL MALFUNCTIONS

You will not hold Vital Media Network™ or its partners responsible for: any incorrect, invalid or inaccurate entry information; human errors; technical malfunctions; failures, including public utility or telephone outages; omissions, interruptions, latency, deletions or defects of any telephone system or network, computer online systems, data, computer equipment, servers, providers, or software (including, but not limited to, software and operating systems that do not permit an entrant to participate in the Service), including without limitation any injury or damage to any entrant’s or any other person’s computer equipment relating to or resulting from participation in the Service; inability to access the Site, or any web pages of Vital Media Network™ ; theft, tampering, destruction, or unauthorized access to, or alteration of, entries and/or images of any kind; data that is processed late or incorrectly or is incomplete or lost due to telephone, computer or electronic malfunction or traffic congestion on telephone lines or transmission systems, or the Internet, or any Service provider’s facilities, or any Site for any other reason whatsoever; typographical, printing or other errors; or any combination thereof.

Vital Media Network™ and any partners are also not responsible for incomplete, illegible, misdirected or stolen entries.  If for any reason the Service is not capable of running as originally planned, as well as if the Site or Service becomes corrupted or does not allow for the proper usage and processing of entries in accordance with the rules, or if infection by a computer (or similar) virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Vital Media Network™ corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service, Vital Media Network™ reserves the right, in its sole discretion, to disqualify any individual implicated in such action and/or to cancel, terminate, extend, modify or suspend the Service, and select the winner(s) from all eligible entries received.  If such cancellation, termination, modification or suspension occurs, notification will be posted on the Vital Media Network™ Site.

From time-to-time servers may overload and data may be lost.  Vital Media Network™ assumes no responsibility for the occasional loss of data, irrespective of whether this loss is temporary or permanent in nature.

The failure of Vital Media Network™ to comply with any provision of these rules due to an act of god, hurricane, war, fire, riot, earthquake, terrorism, pandemic, endemic, act of public enemies, actions of governmental authorities outside of the control of Vital Media Network™ (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these terms.

15.  TAXATION AND NECESSARY TAX-RELATED INFORMATION

a.         In early January of each year all interactive fantasy sports contest winners who have won $600 or more (net of all entry fees) over the previous year will be contacted to provide valid name, date of birth, and social security number, residential address, email address, phone number, and any other information details required for taxation purposes. These details will be used to file a 1099-MISC with the Internal Revenue Service. In addition, these details may be requested earlier, and used earlier, to run appropriate identity checks and comply with applicable rules and regulations in addition to tax-specific obligations.

b.         Paying taxes on winnings shall be the sole obligation of each user. Paying taxes on winnings shall not be the obligation of Vital Media Network™.

c.         By registering for an account and/or using the Site or Service, you agree to provide us, when requested, with a valid name, date of birth, and social security number, residential address, email address, phone number. Failure to provide such information, among other things, will lead to our inability to pay out winnings to your account, and, if the information requested is not provided to us in a reasonably timely manner, your subsequent forfeiture to any right to such winnings.

d.         Further, by registering for an account and/or using the Site or Service, you consent to electronic delivery of all informational tax forms such as Form 1099 and Form W-2G.

16.  NON-AFFILIATION WITH ANY SPORTS LEAGUE OR PLAYERS ASSOCATION

Vital Media Network™, as well as its Site and Service, does not stipulate an association with any professional or amateur sports league, or with any players association or collection of players.  The use of players’ names in conjunction with their statistics in our contests is intended for informational purposes only and should not be construed as an endorsement of our contests.

17. INDEMNITY

By using the Vital Media Network™ Service or accepting any prize, you agree to release and to hold harmless Vital Media Network™ and each of Its subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities from any and all liability, claims or actions of any kind whatsoever, including, but not limited to, for injuries, damages or losses to persons and property which may be sustained in connection with participation in the Service, the receipt, ownership, use or misuse of any prize and claims based on publicity rights, defamation or invasion of privacy.

18. NO WARRANTIES

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VITAL MEDIA NETWORK™ DISCLAIMS ALL WARRANTIES--STATUTORY, EXPRESS OR IMPLIED--INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PRORPIETARY RIGHTS.

Further, you expressly understand and agree that your use of the Site is at your sole risk. The Site is provided on an “AS IS” and “as available” basis. The Service, content, and Site are provided on an "as is" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that Vital Media Network™ has no control over, and no duty to take any action regarding: which Users gain access to the Site or use the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Vital Media Network™ from all liability for youR having acquired or not acquired Content through the SERVICE or the Site. The Site may contain or direct you to Sites containing information that some people may find offensive or inappropriate. Vital Media Network™ makes no representations concerning any content contained in or accessed through the SITE and Vital Media Network™ will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE IS DONE AT YOUR OWN RISK.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF DOWNLOADED MATERIAL.

IN ADDITION, WE DO NOT PERFORM BACKGROUND CHECKS ON ANY INDIVIDUALS ACCESSING THE SITE BEYOND WHAT IS REQUIRED BY APPLICABLE LAW.  WE MAKE NO REPRESENTATIONS, GUARANTEES OR WARRANTIES REGARDING INDIVIDUALS WHO BECOME MEMBERS, THEIR COMMUNICATIONS OR THEIR ACTIONS. IF YOU DECIDE TO INTERACT WITH ANOTHER MEMBER OF OUR SITE AND MEET THAT MEMBER IN REAL LIFE, YOU ASSUME THE RISK OF DOING SO AND SHOULD USE COMMON SENSE SAFETY TIPS.

19.  LIMITATION ON LIABILITY

YOU UNDERSTAND AND AGREE THAT, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, SHALL VITAL MEDIA NETWORK™ BE LIABLE TO YOU 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 VITAL MEDIA NETWORK™ HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (iv) ANY OTHER MATTER RELATING TO THE SITE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, VITAL MEDIA NETWORK™ ’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO VITAL MEDIA NETWORK™ FOR GENERAL USE OF THE SITE DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY ENTRY FEES FOR CONTESTS COMPLETED PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM. THIS LIMITATION ON LIABILITY SHALL EXTEND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAWS.

20. OUR PROPRIETARY RIGHTS

All title, ownership and intellectual property rights in and to the Site are owned by Vital Media Network™ or its licensors. You acknowledge and agree that the Site contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Vital Media Network™, you agree not to modify, rent, lease, loan, sell, publicly display, distribute or create derivative works based on the Site, in whole or in part.

21. LINKS TO THIRD-PARTY SITES

The Site provides, or third parties may provide, links to other World Wide Web sites or resources, including, but not limited to, third party advertisers. Recognizing that Vital Media Network™ has no control over such sites and resources, you acknowledge and agree that Vital Media Network™ is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Vital Media Network™ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or Service available on or through any such Site or resource.  ACCESS AND USE OF THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS AND SERVICE OF THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES IS SOLELY AT YOUR OWN RISK.

22. TERMINATION

Vital Media Network™ may terminate or suspend the Site and any and all Service and your Vital Media Network™ account immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms of Service. Upon termination of your account, your right to use the Site will immediately cease, and all rights under this contract shall cease other than those deemed to survive termination under Section 33 of the Terms. 

If you wish to terminate your Vital Media Network™ account, you may simply discontinue using the Site or contact us with a note to say you wish to terminate your account.  If you contact us expressing the desire to permanently close your account, we will do so at any time, for any reason.  The best way to contact us about terminating your account is by emailing us at support@vitalmedianet.com.

In addition, if you are the parent or guardian of a minor who you believe has accessed our site for the purpose of entering into our contests, we will close that account at any time, for any reason.  The best way to contact us about terminating such an account is by emailing us at support@vitalmedianet.com.

23. NO THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms of Service.  This means, among other things, that you agree, to the full extent permissible by law, no third party shall have any rights to bring claims arising out of these Terms of Service on your behalf or to claim for themselves rights that are afforded to you under this agreement. 

24. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Vital Media Network™ may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others. If you are a copyright owner, or an agent of a copyright owner, and believe that any content on our Site, or Service infringes upon your copyrights, you may submit notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our designated Copyright Agent, with the following information in writing (see 17 USC 512(c)(3)): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) 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; (iii) 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; (iv) information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  Further information and instructions may be found in our Digital Millennium Copyright Act Policy.

25. CHOICE OF LAW

The Federal Arbitration Act shall govern all matters related to arbitration.  Otherwise, you agree that any claim you may have against Vital Media Network™, irrespective of whether the claim that is brought arises under contract, tort or other legal theory, shall be interpreted exclusively under the law of the State of New York.  No user of this site, successor in interest, or any other party seeking to bring suit on behalf of the interests of a user may attempt to argue any state law claims under any theory other than the State of New York.  THIS CHOICE OF LAW CLAUSE SHALL APPLY WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES AND IRRESPECTIVE OF THE UNDERLYING CAUSE OF ACTION.

26. ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT:

Any controversy or claim arising out of, in connection with, or in any way relating to the Terms of Service, with the exception of those controversies or claims specifically excluded in the following paragraph, shall be settled by a single arbitrator from the American Arbitration Association (“AAA”) in connection with AAA rules. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  Any such arbitration shall be held within a twenty-five mile radius of Irvine, CA.

You and Vital Media Network™ agree that the following types of disputes are not subject to this binding arbitration provision: (1) any disputes seeking to enforce or protect, or concerning the validity of either any of your intellectual property rights or Vital Media Network™ ’s intellectual property rights; (2) any claim for injunctive relief; and (3) any type of dispute that is not eligible for arbitration based upon the application law of New York as governs these Terms.

The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879.

In addition, you and Vital Media Network™ agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND VITAL MEDIA NETWORK™ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: support@vitalmedianet.com. The notice must be sent within 30 days of your first use of the Service.  Otherwise, you shall be bound to arbitrate disputes. If you opt-out of these arbitration provisions, VITAL MEDIA NETWORK™ also will not be bound by them.

VITAL MEDIA NETWORK™ will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day. If you continue to use the site after the 60th day, or you affirmatively accept the changes sooner after having been provided notice, you agree that any unfiled claims are subject to the revised clause.

27. Forum Selection

For any dispute not subject to arbitration, or where no election to arbitrate has been made, you and Vital Media Network™ agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located within a twenty-five mile radius of Irvine, CA. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

28. WAIVER AND SEVERABILITY AND TERMS

The failure of Vital Media Network™ to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

29.  ASSIGNMENT

The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by Vital Media Network™ without restriction.  Any assignment attempted to be made in violation of these Terms of Service shall be deemed void.  In addition, you agree that to the fullest extent permissible by law, no third party shall have any rights to bring claims arising out of this Terms of Service on your behalf or to claim for themselves rights that are afforded to you under this agreement. 

30. NO AGENCY

You agree that no joint venture, partnership, employment, or agency relationship of any kind exists between you and Vital Media Network™.   YOU FURTHER ACKNOWLEDGE THAT BY SUBMITTING USER CONTENT TO VITAL MEDIA NETWORK™, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND VITAL MEDIA NETWORK™ .

31.  STATUTE OF LIMITATIONS

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

32.  HEADINGS

The headings and section titles in the Terms are for convenience only and have no legal or contractual effect.

33.  SURVIVAL

The following sections of these Terms shall survive the termination of the Terms and/or your account, irrespective of whether terminated by you or Vital Media Network™ : Sections 6, 8, 9, 12, 14, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 29, 30, 31 and 33.