Genda Terms of Use

Date of Last Revision: October 9th, 2007.

Welcome to Genda, a social calendaring service that allows our members to set up unique personal profiles that can be linked together through networks of friends. Genda members can view each others' profiles and calendars, communicate with old friends and meet new friends on the service, organize and share photos and video, and describe their interests.

The Genda services (collectively, " Genda" or the “Services") are operated by Shot in the Dark Enterprises, LLC, a California limited liability company, and its affiliates (collectively, "us", "we" or the "Company"), at our website at www.Genda.com (the “Site”). These Terms of Use ("Terms of Use" or the "Agreement") establish legally binding terms and conditions for your use of the Services. The Services are hosted in the U.S.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE.

1. Eligibility.

Genda is intended solely for users who are 14 years of age or older who are currently in high school or college, and users who are 18 or older. Any registration by, use of or access to the Site by anyone under 14, or by anyone who is under 18 and not in high school or college, is prohibited, and in violation of these Terms of Use. By using the Service or the Site, you represent and warrant that you are 14 or older and in high school or college, or that you are 18 or older.

2. Accepting the Terms of Use.

By using the Services, you agree to be bound by these Terms of Use, whether you are a "Visitor" (which means that you simply browse the Site) or you are a "Member" (which means that you have registered with the Company). The term "User" refers to a Visitor or a Member. You are only authorized to use the Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to this Agreement. Please read these Terms of Use carefully, print a copy, and save it. If you do not agree with them, you should leave the Site and discontinue use of the Services immediately. If you wish to become a Member, communicate with other Members, and make use of the Services, you must read these Terms of Use and indicate your acceptance during the registration process.

3. Additional Terms. This Agreement includes the Company’s policy for acceptable use of the Services and content posted on the Site, your rights, obligations and restrictions regarding your use of the Services, and the Company’s Privacy Policy. In order to participate in certain Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.

4. Changes to the Terms of Use.

We may make changes to these Terms of Use from time to time. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. You understand and agree that if you use the Services after the date on which the Terms of Use have changed, you will have accepted the updated Terms of Use.

5. Fees.

You acknowledge that the Company reserves the right to charge for the Services and to change its fees from time to time in its discretion. If the Company terminates your membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.

6. Registration Data; Account Security.

You agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (c) be fully responsible for all use of your account and for any actions that take place using your account.

You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to the Company for all activities that occur under your account.

If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately at support@genda.com.

7. Non-commercial Use by Members.

The Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by the Company. Illegal and/or unauthorized use of the Services, including collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Site is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the Services.

8. Proprietary Rights in Site Content; Limited License.

All content on the Site and available through the Service, including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its users or its licensors, with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site.

Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods.

Any use of the Site or the Site Content other than as specifically authorized in these Terms of Use, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes.

Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.

9. User Content Posted on the Site

Please choose carefully the information you post on the Site and that you provide to other Users. Your Genda profile may not include the following items: telephone numbers, street addresses, last names, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, information provided by other Users (for instance, in their profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and the Company assumes no responsibility or liability for this material. If you become aware of misuse of the Services by any person, please contact us, or click on the "Report Inappropriate Content" link at the bottom of any Genda page.

The Company reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, for any or no reason, with or without prior notice, and without liability. The Company expressly reserves the right to remove your profile and/or restrict, suspend, or terminate your access to any part of the Services if the Company determines, in its sole discretion, that you pose a threat to Genda and/or its Users.

You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, "post") on or through the Services or the Site, or transmit to or share with other users (collectively the "User Content"). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company.

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

10. User Content/Activity Prohibited.

You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

The following is a partial list of the kind of User Content that is illegal or prohibited to post on or through the Services. The Company reserves the right to investigate and take appropriate legal action against anyone who, in the Company’s sole discretion, violates this provision, including without limitation, removing the offending communication from the Services and terminating the membership of such violators. Prohibited User Content includes, but is not limited to Content that, in the sole discretion of the Company:

(1) is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(2) harasses or advocates harassment of another person;
(3) exploits people in a sexual or violent manner;
(4) contains nudity, violence, or offensive subject matter or contains a link to an adult website;
(5) solicits personal information from anyone under 18;
(6) provides any telephone numbers, street addresses, last names, URLs or email addresses;
(7) promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(8) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
(9) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
(10) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
(11) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(12) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
(13) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(14) includes a photograph of another person that you have posted without that person's consent; or
(15) for band and filmmaker profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile.

The following is a partial list of the kind of activity that is illegal or prohibited on the Site and through your use of the Services. The Company reserves the right to investigate and take appropriate legal action against anyone who, in the Company’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:

(1) criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
(2) advertising to, or solicitation of, any User to buy or sell any products or services through the Services. You may not transmit any chain letters or junk email to other Members. It is also a violation of these rules to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, The Company reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which the Company deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Services, you acknowledge that you will have caused substantial harm to the Company, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay the Company $50 for each such unsolicited email or other unsolicited communication you send through the Services;
(3) covering or obscuring the banner advertisements on your personal profile page, or any Genda page via HTML/CSS or any other means;
(4) any automated use of the system, such as using scripts to add friends or send comments or messages;
(5) interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
(6) attempting to impersonate another Member or person;
(7) using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
(8) selling or otherwise transferring your profile;
(9) using any information obtained from the Services in order to harass, abuse, or harm another person;
(10) displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private messages with a commercial purpose; or
(11) using the Services in a manner inconsistent with any and all applicable laws and regulations.

11. Trademarks.

GENDA and other Company graphics, logos, designs, page headers, button icons, scripts and service names are trademarks or trade dress of Company in the U.S. and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

12. Copyright Policy.

You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of the Company to terminate membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of proper notification to the Company by the copyright owner or the copyright owner's legal agent. The Company may also, at its sole discretion, limit access to the Site and/or terminate the memberships of any Members who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. The Company’s Copyright Agent for notice of claims of copyright infringement can be reached as follows: Copyright Agent, Shot in the Dark, LLC, 2742 Ottowa Ave Davis, CA 95616; Facsimile: (530) 756-6516 Attn: Copyright Agent; and email: copyrightagent@Genda.com

13. Member Disputes.

You are solely responsible for your interactions with other Members. The Company reserves the right, but has no obligation, to monitor disputes between you and other Members.

14. Privacy.

Use of the Services is also governed by our Privacy Policy, which is incorporated into this Agreement by this reference.

15. Disclaimers

The Company is not responsible for any incorrect or inaccurate content posted on the Site or in connection with the Services, whether caused by Users of the Services or by any of the equipment or programming associated with or utilized in the Services. Profiles created and posted by Members on the Site may contain links to other websites. The Company is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by the Company. Inclusion of any linked website on the Site does not imply approval or endorsement of the linked website by the Company. When you access these third-party sites, you do so at your own risk. The Company takes no responsibility for third party advertisements which are posted on this Site or through the Services, nor does it take any responsibility for the goods or services provided by its advertisers. The Company is not responsible for the conduct, whether online or offline, of any User of the Services.

The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall The Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Services, attendance at a The Company event, from any Content posted on or through the Services, or from the conduct of any Users of the Services, whether online or offline. The Services are provided "AS-IS" and as available and The Company expressly disclaims any warranty of fitness for a particular purpose or non-infringement. The Company cannot guarantee and does not promise any specific results from use of the Services.

The Company reserves the right to change any and all content, software and other items used or contained in the Site and any Services offered through the Site at any time without notice. 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, or any affiliation therewith, by Company.

16. Limitation on Liability.

IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'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 THE COMPANY FOR THE SERVICES DURING THE TERM OF MEMBERSHIP.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

17. Termination.

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service or the Site) for any reason, or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 14, or under 18 and not in high school or college. When we are notified that a user has died, we will generally, but are not obligated to, keep the user's account active under a special memorialized status for a period of time determined by us to allow other users to post and view comments.

18. Governing Law; Venue and Jurisdiction.

You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates. If there is any dispute about or involving the Services, you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in Santa Clara County, State of California. Either the Company or you may demand that any dispute between the Company and you about or involving the Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Santa Clara County, California, USA, provided that the foregoing shall not prevent the Company from seeking injunctive relief in a court of competent jurisdiction.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED.

In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Services (including your visit to or use of the Site and/or the Services) be instituted more than three (3) years after the cause of action arose.

19. Indemnity.

You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content you post or share on or through the Site, your use of the Services or the Site, your conduct in connection with the Services or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights of any third party.

20. User Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Services ("Submissions"), provided by you to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

21. U.S. Export Controls.

Software available in connection with the Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

22. Other.

These Terms of Use constitute the entire agreement between you and Company regarding the use of the Site and/or the Service, superseding any prior agreements between you and Company relating to your use of the Site or the Service. The failure of Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.