TERMS OF SERVICE AND END USER AGREEMENT
Please read these Terms carefully before using the Service. By accessing or using the Service, you agree to be legally bound by this Agreement and all terms, policies and guidelines incorporated by reference in these Terms. If you do not agree with these Terms in their entirety, you may not use the Service.
In this Agreement the content of the Service, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users is called “User Content”. User Content includes, but it is not limited to, (a) logos, pictures, artwork, names and other trademarks, and user-chosen selections and arrangements of web elements that Publishers may submit, and (b) descriptions and reviews of Themes.
User Content is that User’s property. NEWTABGALLERY’s only right to that User Content is the limited licenses to it granted in this Agreement. Those licenses are described in Section 3 and Section 16 of this Agreement.
Other than the User Content, the Service, all Content and all software available on the Service or used to create and operate the Service is the property of NEWTABGALLERY or its licensors, and is protected by domestic and international copyright laws, and all rights to the Service, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by NEWTABGALLERY.
Your User Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your User Content may cause to other people. Although we have no obligation to do so and have no intention of doing so, we have the absolute discretion to remove, screen or edit without notice any User Content posted or stored on the Service, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Service.
- Your Limited License of Your User Content to NEWTABGALLERY
We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Service now and in the future. In particular, we need the right to use User Content provided by Publishers to make available Themes for download by that Publisher and, with the Publisher’s permission, by other Users.
Therefore, by posting or distributing User Content to or through the Service, you (a) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Service; and (ii) the use and posting or other transmission of such User Content does not violate this Agreement and will not violate any rights of or cause injury to any person or entity; and (b) grant NEWTABGALLERY and its affiliates and subsidiaries a worldwide, non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content on the Service, in the manner in and for the purposes for which the Service from time to time uses such User Content.
If your User Content is intended for the use of other Users, such as when you use BT:Engage to generate a Theme available for other to download, you also grant us and our affiliates and subsidiaries a worldwide non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of the Service or Theme.
These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Service. And they are transferable because we need the right to transfer these licenses to any successor operator of the Service. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Service does this to your User Content when it processes it for use in the Service.
Except as expressly granted in this Agreement, Publishers retains all right, title and interest in and to their User Content, their trademarks and any Intellectual Property Rights therein.
- Our Limited Licenses to You
(a) General. NEWTABGALLERY grants you a limited, revocable, non-exclusive, non-sublicensable license to access the Service, to use BT:Engage to generate a Theme based on your User Content, and to view, copy and print the portions of the Content available to you on the Service. Such license is subject to this Agreement, and specifically conditioned upon your compliance with the this Agreement, including without limitation, the Restrictions and Prohibitions set forth in Section 5. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and will terminate the license granted in this Section, this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by NEWTABGALLERY at any time.
(b) Themes. If you download and/or install a Theme, including any that you have used the Services to generate using your User Content, your use of that Theme is permissible pursuant to, and subject to the restrictions set forth in, the NEWTABGALLERY Theme License Agreement, accessible here.
(c) Our Proprietary Rights. Use of the Services to generate a Theme does not create nor imply that you have created or obtained any intellectual property or other rights in that Theme other than the rights in your User Content. Except as expressly granted in this Agreement, NEWTABGALLERY retains all right, title and interest in and to the Services, including without limitation BT:Engage, its trademarks and any Themes (except for the User Content) including any Intellectual Property Rights therein. Publisher will not earn or acquire any rights or licenses in any of the Services on account of this Agreement or Publisher’s performance under this Agreement except as expressly set forth in the limited license grants set forth herein. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Services or any Themes.
- Restrictions and Prohibitions on Use.
(b) Restrictions applicable to Publishers.
1) NEWTABGALLERY retains the exclusive right to determine and set the default provider of any web search services, functionality or feature (“Web Search Feature”) that may be available in a Theme, including, without limitation, the right to change any definitions that may be required as part of the setting of such default Web Search Feature. Publishers will not: (A) modify, remove or interfere with the default Web Search Feature provided in or made available in any Application or the definitions related thereto; (B) provide, make available or link to any Web Search Feature, including without limitation references or advertisements to Web Search Features, that compete with or are similar to the default Web Search Feature provided in or made available in any Application; (C) provide, make available or link to any Web Search Feature in any Application that does not provide or makes available any Web Search Feature; or (D) permit, authorize or encourage a third party to engage in the prohibited activity set forth in (A) through (C). In the event that NEWTABGALLERY offers certain unique features or functionality such as, video search or music features as part of the NEWTABGALLERY Technology (each a “Unique Feature”), Publishers shall not modify, remove or interfere with Unique Features including, but not limited to the default settings and/or the definitions thereof.
2) Publishers shall use the Services to generate a Theme that in anyway enables, constitutes or performs a Prohibited Activity and shall not use in connection with an Theme or the Services any content generated by any third party which is engaged in any Prohibited Activity. The term “Prohibited Activity” means: (a) activity or use of content (including, without limitation, signs, images, or texts) that (i) violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting personal information from any individuals under the age of 13 in violation of the Children’s Online Privacy Protection Act of 1998; (ii) violates, misappropriates, or infringes any third party (including, without limitation, Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes with Web navigation or browsing; or (iv) creates or poses any kind of security threat or breach to any User or any other third party (b) usage which adversely affects public or private infrastructure or equipment; (c) installations of an Application that are generated without an accurate and conspicuous disclosure and without informed and active consent; (d) fraudulent activity of any kind; (e) use of content or content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racial, libelous, gambling-related, discriminatory, offensive or deceptive material or any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by NEWTABGALLERY in its sole discretion; (f) using an Theme or the Services in order to offer, distribute or promote any web browser application that is substantially similar to that generated by the Services; (g) redirect traffic or replace web pages available within a Theme to web pages which promote content or products which may adversely effect use of the Theme or the Services; (h) generate or using a Theme in a manner that violates, or enables the violation of, the Privacy Policies, Terms of Service, or License Agreement applicable to Themes and the NEWTABGALLERY Services; (i)
- Linking to the Service.
You may provide links to the Service, provided (a) that you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice, or other notices on the Service, (b) your site does not engage in illegal or pornographic activities, and (c) you discontinue providing links to the Service immediately upon request by us.
- Promotion and Marketing.
(a) A Publisher may not issue any press release or any other marketing regarding this Agreement without NEWTABGALLERY’s prior written approval. A Publisher may advertise and promote a Theme from the Publisher website and may, in addition, advertise and promote a Theme from Publisher’s other online or offline properties (“Publisher Promotion”). The Publisher Promotion from the Publisher website shall include a link to the Theme download page. In the event that a Theme does not automatically include the notice “Powered by NEWTABGALLERY” (“NEWTABGALLERY Notice”), Publishers shall provide the NEWTABGALLERY Notice in a prominent and visible format in connection with any Publisher Promotion and where provided via a web page, Publishers will include a link to http://newtabgallery.com in the Publisher Promotion. As an example, Publishers may satisfy the requirements of this Section using the following wording: “[Theme Name] Powered by NEWTABGALLERY”.
(b) Publishers agree that NEWTABGALLERY may: (i) feature a Theme in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or ad campaigns and web pages; (ii) indentify Publishers as a user of the NEWTABGALLERY Technology on NEWTABGALLERY websites, client lists, press releases, and in other marketing; and (iii) publish a brief description and/or case study highlighting Publishers’ deployment of an Application and use of the NEWTABGALLERY Technology (each a “NEWTABGALLERY Promotion”). In the event that a Publisher wishes to be excluded from a specific NEWTABGALLERY Promotion, Publisher shall notify NEWTABGALLERY in writing via the “Contact Us” link, which is available on the NEWTABGALLERY website. Unless otherwise agreed by parties, Publishers shall not be entitled to any compensation as a result of any NEWTABGALLERY Promotion.
(c) Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-assignable, non-sublicensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. “Marks” mean a party’s trademarks, service marks, trade names and associated logos that a party may provide to the other party in connection with this Agreement. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to NEWTABGALLERY, solely in accordance with NEWTABGALLERY’s Trademark Policy, as may be amended from time to time. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.
Certain sections of, or offerings from, the Service may require you to register. If registration is requested, you agree to provide us with accurate, complete registration information. You must be at least 13 years old to use the Service. Your registration must be done using your real name and accurate information. Each registration is for your personal use only and not on behalf of any other person or entity. We do not permit (a) any other person using the registered sections under your name; or (b) access through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use, and you agree to accept all risks of unauthorized access to your registration data and your User Content.
- Errors, Corrections and Changes.
We do not represent or warrant that the Service will be error-free, free of viruses or other harmful components, or that defects will be corrected. We do not represent or warrant that the information available on or through the Service will be correct, accurate, timely or otherwise reliable. We may make changes to the features, functionality or content of the Service at any time. We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Service.
- Third Party Content; Advertising.
Third party content may appear on the Service or may be accessible via links from the Service. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content on the Service. You understand that the information and opinions in the third party content represent solely the thoughts of the author and is neither endorsed by nor does it necessarily reflect our belief.
The Service may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Service is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertiser’s or sponsor’s materials.
NEWTABGALLERY may deliver third-party Advertisements in the form of coupons, price-comparisons, display media, affiliate links and other links through means including but not limited to the content of any web page accessed, plug-ins, add-ons, or the browser itself. Advertisements may be injected to overlay the page or inserted directly into the page content. User hereby acknowledges and consents that NEWTABGALLERY may alter the content of any web page accessed for the purpose of displaying Advertisements. NEWTABGALLERY does not endorse and is not responsible for any information, materials, products, or services contained in or accessible through Advertisements. Accordingly, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between User and such advertiser. ACCESS AND USE OF ADVERTISEMENTS, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH ADVERTISEMENTS SITES IS SOLELY AT YOUR OWN RISK.
(a) Cookies and Other Technologies. When you visit and interact with this site, NEWTABGALLERY (NEWTABGALLERY), and third parties with whom NEWTABGALLERY has contracted to provide services to NEWTABGALLERY, may collect non-personal information (for example, a catalog of the site pages you visit).
(b) Our Collection and Use of Non-Personal Information. As with many other sites, our site may use “cookies” or other technologies to help us deliver content specific to your interests, to process your requests, and/or to analyze your visiting patterns. Cookies, by themselves, cannot be used to disclose your individual identity. This information identifies your browser, but not you, to our servers when you visit our site. If you want to remove or block cookies at any time from your computer, you can update your browser settings (consult your browser’s “help” menu to learn how to delete or block cookies).
We also may collect data by using “pixel tags,” “web beacons,” “clear GIFs” or similar means (collectively, “pixel tags”) that allow us to know when you visit our site and to understand how you interact with our emails or advertisements. Through pixel tags, we obtain non-personal information or aggregate information (i.e., the domain name, the areas of the site you visit, your operating system, your browser version, and the URL you came from), which can be used to enhance your online experience and understand traffic patterns.
Because non-personal information does not personally identify you, we may use or disclose such information for any purpose.
(c) Our Vendors’ and Partners’ Collection and Use of Non-Personal Information. We also work with vendors and other partners to help deliver online and mobile advertisements for NEWTABGALLERY that we think may be of interest to you. Many of these advertisements are not targeted to you, but rather are placed on pages where we anticipate our target audience will visit frequently.
Some of our advertisements delivered for us by these vendors and other partners may be based on your online behaviors (e.g., on NEWTABGALLERY sites and other third party sites), your search activity, or your general geographic location (such as whether your Wi-Fi network indicates that you are in an airport). These ads may appear on our own sites or on third-party websites. You may also see advertisements for third parties on other websites based on your visits to NEWTABGALLERY sites and other sites.
We also engage vendors to deliver online advertisements to users whose online behaviors on sites other than our own sites indicate that they may be interested in our products, or to help us deliver advertisements to users based on their publicly-available social networking information. Some of our vendors may use anonymous data, such as demographic data, received from third parties to assist in the delivery of our advertisements to you.
You may view a list of companies that collect or use information about your browsing activity to assess your ad interests, and opt-out of their use of your browsing activity to serve you interest-based ads, here. Those companies are responsible for managing and honoring your opt-out choices, and NEWTABGALLERY is not responsible for their actions or policies.
- Unlawful or Unauthorized Activity.
(a) We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information.
(b) In the event a Publisher identifies or is made aware that a Theme they have generated using the Services in any way violates this Agreement, applicable privacy policies, the rights of any third party, or applicable law, the Publisher shall immediately notify NEWTABGALLERY, take all steps necessary to remove, fix or resolve such matters, and to the extent required by applicable law or requested by NEWTABGALLERY, to notify all Users who have downloaded such theme.
You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of this Agreement or use of the Service.
Your right to use the Service is not transferable or assignable. Any password or right given to you to obtain information or documents is not transferable or assignable.
THE SERVICE, AND THE INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE SERVICE ARE PROVIDED “AS-IS,” “AS AVAILABLE,” WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED IN SECTION 15. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SERVICE AND THE PRODUCTS, SERVICES, DOCUMENTS AND INFORMATION PRESENTED WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICE OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED.
- Limitation of Liability
We and any Affiliated Party shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Service or any services or products obtainable therefrom, (b) the unavailability or interruption of the Service or any features thereof, (c) your use of the Service, (d) the content contained on the Service, or (e) the failure of the site to preserve User Content.
THE AGGREGATE LIABILITY OF US AND THE AFFILIATED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE SITE AND/OR THE PRODUCTS, INFORMATION, DOCUMENTS AND SERVICES PROVIDED HEREIN OR HEREBY SHALL NOT EXCEED $100 AND THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED PARTY.
- Use of Information.
- Third-Party Services.
We may allow access to or advertise certain third-party product or service providers (“Merchants”) from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of or purchase from such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SERVICE.
All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on any Merchant sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.
- Inactive Accounts; Cancellation; Termination of Agreement
This Agreement shall remain effective until terminated by either party. You and/or NEWTABGALLERY may terminate this Agreement and your use of the Service at any time. Specifically, we reserve the right to terminate your User account and your use of the Service without prior notice (a) if we believe in our discretion that you have violated or acted inconsistently with this Agreement or (b) if we determine in our sole discretion to terminate the Service with you or any other User. When your account is terminated, your User Content will, shortly thereafter, not appear on the Service, except for User Content submitted to our forum or comments on our blog, which may remain on the Service after termination. We may also retain an archival copy of your User Content after termination, provided, however, that we make no guaranties that we will do so. You hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
Upon termination of this Agreement for any reason, we will no longer allow Users to download any themes that you have created using your User Content. However, the termination of this Agreement shall in no way affect the rights of any other User who has, prior to such termination, obtained the right to use any such Theme by downloading it from the Service or otherwise. NEWTABGALLERY will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the NEWTABGALLERY Technology or an Application.
You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement, in whole or in part, to any third party without our prior, written consent, and any attempt by you to do so will be invalid.
This Agreement shall be treated as though it were executed and performed in Columbus, Ohio, and shall be governed by and construed in accordance with the laws of the State of Ohio (without regard to conflict of law principles). Any cause of action by you with respect to the Service (and/or any information, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Section 14 and Section 15. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Service is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
- Questions and Comments.
If you have any questions regarding this Agreement or your use of the site please contact us here:
4252 JOHN SHIELDS #101
Columbus, Ohio 43017
Last Updated: October , 2018