Black Castle Design® Terms and Conditions of Use
Welcome to Black Castle Design®! By using Black Castle Design®,
and signing up as a Client, you agree to be legally bound by these
Terms and Conditions of Use (the “Terms and Conditions”),
including those terms and conditions incorporated by reference.
Please read these Terms and Conditions carefully. If you do not
accept these Terms and Conditions, you may not use the Black Castle
Design® service. Black Castle Design® may revise these Terms
and Conditions at any time by updating this posting. You should
visit this web page periodically to review the Terms and Conditions,
because they are binding on you. In these Terms and Conditions,
all services provided by and related to Black Castle Design®,
and all text, images, photographs, user interface, “look”
and “feel”, data and other content included at Black
Castle Design®.com from time to time (including, without limitation,
the selection, coordination and arrangement of such content) are
sometimes referred to as the “Web Site” and/or “Service.”
You acknowledge and agree that Black Castle Design® shall have the right
(but not the obligation) in its sole discretion, to pre-screen,
refuse or remove any project and/or user provided content that
violates these Terms and Conditions or is otherwise objectionable,
including, without limitation, projects or content that is illegal,
obscene, indecent, defamatory, incites religious, racial or ethnic
hatred, or violates the rights of others. Activity that is brought
to our attention which appears in our sole judgment to violate
the law will be brought to the attention of the proper authorities.
You acknowledge, consent and agree that Black Castle Design® 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 to: (a) comply
with legal process; (b) enforce these Terms and Conditions; (c)
respond to claims that any content violates the rights of third-parties;
(d) respond to your requests for customer service; or (e) protect
the rights, property, or personal safety of Black Castle Design®, its users
and the public.
1. Black Castle Design® Service Generally
(a) Description. The Black Castle Design® Service is an online offering where
individuals or entities that have signed up with Black Castle Design® as
clients (each, a “Client”) can post specific assignments
and project descriptions, including illustrative samples or other
media (each, a “Creative Brief”), revise those Creative
Briefs (each, a “Revision Brief”) and obtain responses
(each, a “Response”) to those Creative or Revision
Briefs from design experts retained by Black Castle Design® (“Members”).
Black Castle Design® will provide you, as the Client, the Service according
to the Package you have chosen as detailed in section 1(e) below.
Your Responses will be created iteratively through a drafting
cycle of Creative Briefs, Revision Briefs and Responses, ultimately
resulting in a final Response conforming to your various Creative
and Revision Briefs.
(b) Creative Brief and Responses. You are solely responsible for
preparing and posting detailed descriptions of each of your Creative
Briefs to the Web Site, including providing samples illustrating
your Creative Brief and any relevant deadlines. For each Response
to a Creative Brief that you want to receive, a term sheet (a
“Term Sheet”) will be generated that will contain,
and be subject to, the terms and conditions you have established
for the Creative or Revision Brief. Black Castle Design® is under no obligation
to review a Creative or Revision Brief or Term Sheet for any purpose,
including accuracy, completeness of information, quality or clarity.
Black Castle Design® may decide, in its sole discretion, to deny a Creative
or Revision Brief or a Term Sheet.
(c) Reviewing Responses. When Black Castle Design® provides you with a Response,
you are responsible for reviewing the Response. If you fail to
promptly inform Black Castle Design® that the Response is not reasonably
responsive to the related Term Sheet or Creative Brief, you will
be deemed to have accepted the Response. If you notify Black Castle Design®
that you think a Response is not reasonably responsive to the
related Creative Brief, you shall then submit to the Web Site
a Revision Brief containing information regarding amendments or
modification to be made to the initial Response. After you provide
Black Castle Design® with a Revision Brief, Black Castle Design® will provide you with
a subsequent Response that conforms to the additional criteria
you requested. Black Castle Design® is not responsible for the content of
Responses developed to the extent that such Responses are prepared
to conform to your Creative or Revision Briefs.
(d) Revision Cycles. Revision cycles generally consist of 2-6
additional compositions that incorporate changes you request in
a Revision Brief. The purpose of the revision process is to create
Responses that move your project forward in the specific direction
you have determined. You may request significant changes in the
first and second cycles, and the Responses generated might be
quite different in nature from the original composition you selected.
By the third revision request, your requests shall be modifications
of the current composition only. Revision requests that depart
from the then-current composition will be honored and completed
in a timely manner, however; Black Castle Design® reserves
the right to charge $20 for each such Revision. No revision work,
which requires payment, will be started without your authorization.
(e) Packages. You may select from the following Service Packages:
Starter Package
4-6 original Response compositions
Unlimited revision cycles
Advanced Package
4-6 original Response compositions
Unlimited revision cycles
Platinum Package
4-6 original Response compositions
Unlimited revision cycles
Stationery Package
2 original Response stationery sets
2 revision cycles
(f) Client Accounts. When you register for the Service, you must
pay for the Service via credit card, or other payment method expressly
authorized by Black Castle Design®. You will be charged for the Package you
have selected. If you pay by credit card, you will be required
to provide a valid credit card number and credit card billing
address when registering as a Client. Black Castle Design® will email you
a receipt for the transactions in which you are involved. Our
fee policy for Clients may change and we may decide to impose
additional fees on Clients at any time; however, such additional
fees will not apply to projects submitted before Black Castle Design® implements
any such change in fees.
(g) Refunds. If you are not satisfied with the initial Responses
provided by Black Castle Design®, you may request a refund by completing
the Refund Request form, which will be provided to you upon request.
Upon timely receipt of the completed form, Black Castle Design® will refund
the total payment made by you, less a seventy-five dollar ($75.00)
service and processing fee. However, refunds are only available
to the actual Client for whom the logo was created. No refund
is available for design firms or for those who order our design
services on behalf of another entity. Furthermore, you shall forfeit
the right to the refund outlined above if you request additional
revisions to any of the initial concepts. You shall also forfeit
the right to a refund if you do not respond in a timely manner
to a status notification from Black Castle Design®, as described below in
section 1
(h). Should you receive a fund, you agree that your acceptance
of the refund shall constitute your sole and exclusive remedy
with respect to related Responses. Additionally, you acknowledge
that you will have no right (express or implied) to use any Response
or other work product, content, or media, nor will you have any
ownership interest in or to the same.
(i) Project Duration. You agree to provide timely responses to
any status notifications that Black Castle Design® sends to you. You shall
have 30 days to respond to each Response sent to you. If after
30 days you have failed to respond, Black Castle Design® will assume that
your project is complete and the project shall be deemed completed.
At such time, Black Castle Design® will have no further obligation to you,
and you will pay Black Castle Design® pursuant to the provisions of these
Terms and Conditions. Notwithstanding the foregoing, Black Castle Design®
reserves the right, in its sole discretion, to terminate your
access to all or a portion of the Service, at any time, with or
without notice. In the event of such termination, Black Castle Design® will
determine, in its sole discretion, whether you are entitled to
any refund.
2. Eligibility, Access, Use and Service
(a) Eligibility Requirements. To register as a Client, you must
be at least 18 years of age, agree to these Terms and Conditions
and Black Castle Design®’ privacy policy (located at www.Black Castle Design®.com/privacy.html),
and complete the registration procedure. By registering as a Client,
you represent and warrant that you meet these eligibility requirements,
that the information you include as part of the registration process
is complete and accurate and, if you are registering on behalf
of an entity, that you are authorized to bind that entity to these
Terms and Conditions. Black Castle Design® may accept or reject your registration
in its sole discretion.
(b) Authorization to Use; Permitted Uses. You may access and use
the Service solely in accordance with these Terms and Conditions
and any posted policies and procedures that appear on the Web
Site. You may provide Creative Briefs and obtain Responses only
if you register as a Client. Any use of the Web Site is at your
sole risk and responsibility. Subject to these Terms and Conditions,
you may (i) display the Web Site on an Internet access device,
and (ii) on an occasional, infrequent and ad hoc basis, and only
in circumstances that constitute “fair use” under
United States copyright law, print copies of insubstantial portions
of the Web Site.
(c) Prohibited Uses. Except as expressly permitted in these Terms
and Conditions, you may not display or print the Web Site and
in no event may you broadcast, circulate, distribute, download,
perform, publish, rent, reproduce, sell, store, transmit or create
decorative works from the Web Site. Additionally, you agree to
comply with all applicable laws (including, without limitation,
any applicable export controls) in connection with your use of
the Service, and with such further limitations or rules as may
be set forth on the Web Site. Without limiting the foregoing,
you agree not to transmit, distribute, post, communicate or store
information or other material on, to or through the Web Site that
(i) is copyrighted, unless you are the copyright owner; (ii) reveals
trade secrets, unless you own them; (iii) infringes on any other
proprietary or intellectual property rights of others, on the
privacy or publicity rights of others, or any statutory right;
(iv) is obscene, defamatory, threatening, harassing, abusive,
hateful, or embarrassing to any other person or entity; (v) is
sexually-explicit; (vi) constitutes advertisements or solicitations
of business, chain letters or pyramid schemes; or (vii) contains
viruses, Trojan horses, worms, time bombs, or other computer programming
routines or engines that are intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any system,
data or information. You further agree not to (a) use any incomplete,
false or inaccurate biographical information or other information
for purposes of registering as a Client; (b) delete or revise
any material or other information of any other user of Black Castle Design®
(c) take any action that imposes an unreasonable or disproportionately
large load on the Web Site’s infrastructure; (d) use any
device, software or routine to interfere or attempt to interfere
with the proper working of the Service or any activity being conducted
on the Web Site; (e) use or attempt to use any engine, software,
tool, agent or other device or mechanism (including, without limitation,
browsers, spiders, robots, avatars or intelligent agents) to navigate
or search the Web Site, other than the search engine and search
agents available from Black Castle Design® on the Web Site and other than
generally available third-party web browsers (e.g., Microsoft
Internet Explorer and Netscape Navigator); or (f) attempt to decipher,
decompile, disassemble or reverse-engineer any of the software
comprising or in any way making up a part of the Web Site.
(d) Web Site Security. You are prohibited from violating or attempting
to violate the security of the Web Site, including, without limitation,
(i) accessing data not intended for you or logging into a server
or account that you are not authorized to access; (ii) attempting
to probe, scan or test the vulnerability of a system or network
or to breach security or authentication measures without proper
authorization; (iii) attempting to interfere with service to any
user, host or network, including, without limitation, by way of
submitting a virus to, or overloading, “flooding”,
“spamming”, “mailbombing” or “crashing”,
the Web Site; (iv) sending unsolicited email to any user of the
Web Site, including promotions and/or advertising of products
or services; or (v) forging any TCP/IP packet header or any part
of the header information in any email or posting generated in
connection with the Service. Violations of system or network security
may result in civil or criminal liability. Black Castle Design® will investigate
occurrences that may involve such violations and may involve,
and cooperate with, law enforcement authorities in prosecuting
users who are involved in such violations. Black Castle Design® reserves
the right to review postings on the Web Site, to remove any postings,
and to terminate your ability to communicate with, or post to,
the Web Site at any time without notice, in its sole discretion.
Black Castle Design® will use commercially reasonable efforts not to disclose
any information you communicate with, or post to, the Web Site,
but reserves the right to disclose such information to the extent
necessary to satisfy any applicable law, regulation, legal process
or governmental request, and the right to edit, refuse to post
or to remove any information or materials, in whole or in part.
(e) Operation of Web Site. Black Castle Design® shall not be responsible
for any delays or interruptions of, or errors or omissions contained
in, the Web Site. Black Castle Design® reserves the right, but shall not
be required, to correct any such delays, interruptions, errors
or omissions. Although Black Castle Design® intends to use commercially reasonable
efforts to make the Web Site and Service accessible, Black Castle Design®
makes no representation, warranty or covenant that the Web Site
or Service will be available at all times or at any time. Various
circumstances may prevent or delay availability, including telecommunications
and/or server problems. Black Castle Design® may at any time discontinue
the Web Site in whole or in part, may change or eliminate any
transmission method, and may change transmission speeds or other
signal characteristics. Black Castle Design® shall not be responsible for
any loss, cost, damage or liability that may result from any of
the circumstances, actions or inactions described in this paragraph.
3. Registration, Password, User Identity
(a) Your User Identity. When you register as a Client, you will
create a user identity (your “User Identity”), which
will be your identity for purposes of interacting with other users
through the Web Site. Your User Identity will include certain
personal information, such as, the industry in which you operate.
However, your user name need not be your real name. During the
registration process, the fields requesting information that will
be made available to others as part of your User Identity are
identified. You are responsible for ensuring that you are comfortable
making such information available to other Web Site users.
(b) Access Numbers, Passwords, and Password Access. You shall
keep confidential, shall not disseminate, and shall use solely
in accordance with these Terms and Conditions, your User Identity,
registration identification and password for the Web Site. You
shall immediately notify Black Castle Design® if you learn of or suspect:
(i) any loss or theft of your User Identity, registration identification
or password, or (ii) any unauthorized use of your registration
identification or password or of the Web Site. In the event of
such loss, theft, or unauthorized use, Black Castle Design® may impose on
you, at Black Castle Design®’ sole discretion, additional security
obligations.
(c) Security Breaches and Revision. If any unauthorized person
obtains access to the Web Site as a result of any act or omission
by you, you shall use your best efforts to ascertain the source
and manner of acquisition and shall fully and promptly inform
Black Castle Design®. You shall otherwise cooperate and assist in any investigation
relating to any such unauthorized access.
4. Ownership; Rights to Use
(a) Web Site and Service Generally. Except as expressly contemplated
under these Terms and Conditions, as between Black Castle Design® and you,
Black Castle Design® will own all right, title and interest in and to all
copyright, trademark, service mark, patent, trade secret or other
intellectual property and proprietary rights in and to the Web
Site and Service, in all media now known or later devised, to
the fullest extent provided under United States and international
law. You shall not remove, conceal or alter any copyright notice,
byline information, disclaimer, restriction or other notice on
the Web Site or any portion thereof. You shall not use or permit
any third party to use the name, trademarks, trade names, or trade
dress of Black Castle Design®, including “Black Castle Design®”, without
the prior written consent of Black Castle Design®, as determined in its sole
discretion, for each such use.
(b) Creative and Response Briefs. Upon submission of a Creative
or Response Brief or any other information or media provided by
you in connection with your use of the Service (collectively,
the “Client Information”), Black Castle Design® and its agents
shall have all rights and licenses necessary to use such Client
Information for the purpose of obtaining Responses and for archival
purposes. Each Member to whom your project is made available has
the right to review and display the relevant Term Sheet for purposes
of preparing a Response.
(c) Rights of Black Castle Design®. Upon your submission of
Client Information to the Service, you grant Black Castle Design®
and its agents a royalty-free, perpetual, irrevocable, sublicenseable,
exclusive, worldwide right (including any moral rights) and license
to use, reproduce, modify, adapt, publish, translate, create derivative
works from, distribute, communicate to the public, perform and
display (in whole or in part), and/or incorporate in other works,
in any form, media, or technology now known or later developed,
such Client Information, for the full term of any intellectual
property rights that may exist in such Client Information to the
extent necessary to provide you with the Service and Responses.
(d) Rights of Clients. Subject to your compliance with these Terms
and Conditions, you shall own the final the Response composition
provided to you by Black Castle Design® (the “Final Product”).
You shall not, however, own any materials, media or other content
generated during any revision cycles leading up to the Final Product,
and Black Castle Design® expressly reserves all right, title and interest
in and to the same. You acknowledge and hereby grant to Black Castle Design®
a royalty-free, irrevocable exclusive worldwide right to use Creative
and Revision Briefs, individual Responses provided to you, and
Final Product for internal and archival purposes, and in order
to display and promote the Black Castle Design® Service. Black Castle Design® retains
the rights to all artwork concepts and other content not selected
by you. You acknowledge that your ownership rights under these
Terms and Conditions are limited to the Final Product, and that
no trademarks or service marks in or to any Final Product are
being conveyed under these Terms and Conditions. You hereby acknowledge
that Black Castle Design® shall have no obligation or duty to perform trademark,
service mark or copyright searches or inquiries, or the like,
in order to validate the propriety or legality of the Final Product.
Accordingly, you are encouraged to perform your own independent
searches with regard to the Final Product. Furthermore, you acknowledge
that Black Castle Design® shall have no responsibility or obligation of any
kind to assist you in seeking state or federal intellectual property
protection (i.e., without limitation, trademark or copyright registration)
for the Final Product, nor shall Black Castle Design® be responsible for
otherwise assisting you in any way in your attempt to perfect
your rights in or to the Final Product.
5. Nondisclosure and Privacy. Black Castle Design® intends to use commercially
reasonable efforts to follow its privacy policy, as such privacy
policy may be changed from time to time at Black Castle Design®’ sole
discretion. Notwithstanding the foregoing, Black Castle Design® cannot and
does not assume any responsibility or liability for any information
submitted to the Web Site or for the use or misuse of any information
submitted by you or any other person, including, without limitation,
any information accessed by a hacker or by any other malicious
act.
6. Disclaimers; Indemnification; Limitations of Liability
(a) Responsibility for Content. Black Castle Design® shall not be responsible
for any use that is or is not made of the Web Site or the Service.
Without limiting the foregoing, Black Castle Design® makes no representations,
warranties or covenants regarding, and does not guarantee, the
truthfulness, accuracy, or reliability of any information or other
material (including, without limitation, any Creative Brief, Term
Sheets, Responses or User Identity) that are communicated through,
or posted to, the Service, whether by Members, Clients, Black Castle Design®
or otherwise, nor does Black Castle Design® endorse any opinions expressed
by any user of the Web Site, including any Member or Client. Without
limiting the foregoing, Black Castle Design® makes no representations, warranties
or covenants regarding the validity of the rights to Responses
granted pursuant to these Terms and Conditions. You acknowledge
that any reliance on information or other material, including,
without limitation, any information related to a particular Package
or your project, Term Sheet, Response or User Identity, communicated
through the Service, or posted to the Web Site, will be at your
own risk. Without limiting the foregoing, you agree and acknowledge
that you use each Response at your own risk and that you are responsible
for taking any actions you deem reasonable to determine whether
your use of a Response will infringe any statutory or third-party
intellectual property, privacy or publicity rights.
(b) Links to Third-Party Services. The Web Site may contain links
to third-party web sites or other services (the “Linked
Content”). The Linked Content is not under the control of
Black Castle Design® and Black Castle Design® is not responsible for the Linked Content,
including, without limitation, links contained in the Linked Content,
or any changes or updates to Linked Content. Black Castle Design® is providing
Linked Content to you only as a convenience, and the inclusion
of such Linked Content is not an endorsement by Black Castle Design® of such
Linked Content. If you decide to access any Linked Content, you
do so at your own risk.
(c) Disclaimer of Warranties. THE SERVICE AND THE RESPONSES ARE
PROVIDED “AS IS.” Black Castle Design® MAKES NO REPRESENTATION
OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON
RELATING IN ANY WAY TO THE WEB SITE, INCLUDING ANY PART THEREOF,
OR ANY WEB SITE OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE
DIRECTLY OR INDIRECTLY THROUGH THE WEB SITE, INCLUDING ANY TERM
SHEET, RESPONSE, USER IDENTITY OR LINKED CONTENT. Black Castle Design® DISCLAIMS,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS
AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, Black Castle Design® DISCLAIMS, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES AGAINST INFRINGEMENT
OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS;
(iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR
OMISSIONS IN THE WEB SITE, OR ANY PART THEREOF; (iv) WARRANTIES
RELATING TO THE TRANSMISSION OR DELIVERY OF THE WEB SITE; AND
(v) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NON-PERFORMANCE,
OR OTHER ACTS OR OMISSIONS BY Black Castle Design® OR ANY THIRD PARTY. FURTHERMORE,
THERE IS NO WARRANTY THAT THE WEB SITE WILL MEET YOUR NEEDS OR
REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.
(d) Release from Claims. The Service serves solely as a venue
for the creation of work and Black Castle Design® does not regularly screen
or censor any information or material posted to the Web Site.
Although Black Castle Design® makes commercially reasonable efforts to determine
the identity of Clients, Black Castle Design® cannot and does not confirm
that any Client or other user is who they claim to be or that
any Client or other user has the qualifications he or she claims
to have. Because Black Castle Design® does not and cannot be involved in
user-to-user dealings or control the behavior of participants
on the Web Site, if you have a dispute with one or more users,
you hereby release Black Castle Design® (and our affiliates, agents and employees)
from claims, demands and damages (actual and consequential, direct
and indirect) of every kind and nature, known and unknown, suspected
and unsuspected, disclosed and undisclosed, arising out of or
in any way connected with such disputes. If you are a California
resident, you waive California Civil Code section 1542, which
says: “A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor.”
(e) Indemnification. You hereby agree to defend, indemnify and
hold harmless Black Castle Design® and its subsidiaries, affiliates, officers,
agents, co-branders or other partners and employees from any action,
claim, demand, or liability arising from or relating to your violation
of any of these Terms and Conditions or use of the Web Site, and
any expenses incurred in connection therewith, including, without
limitation, reasonable attorneys’ fees.
(f) Limitation of Damages. IN NO EVENT SHALL THE COMPANY OR ANY
THIRD PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES
ARISING UNDER OR IN ANY WAY RELATED TO THE WEB SITE, INCLUDING
ANY PART THEREOF, OR THESE TERMS AND CONDITIONS OR ANY OTHER CONSENT
(INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION,
TRADING LOSSES, AND DAMAGES THAT RESULT FROM INACCURACY OF THE
INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE
SERVICE) EVEN IF Black Castle Design® OR ANY THIRD PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Black Castle Design®’
TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL AMOUNT
YOU PAID TO Black Castle Design® FOR YOUR PACKAGE UNDER THESE TERMS AND CONDITIONS.
7. Communications. By using the Black Castle Design® Service, you agree to
receive, via email or otherwise, status notifications, a monthly
newsletter, and carefully selected special offers and promotions
for certain products and services that we believe could be of
value to our Clients. This is essential to maintaining the low-cost
of our services. You are free to unsubscribe from any newsletters
we send to you at any time. Black Castle Design® may or may not use a third
party to send email or otherwise contact you, however, your personal
identifying information will never be disclosed or shared with
another party in a manner inconsistent with Black Castle Design®’ privacy
policy.
8. Miscellaneous Provisions
(a) Entire Agreement. These Terms and Conditions set forth the
entire agreement and understanding of the parties with respect
to the subject matter hereof and supersede any and all prior oral
or written agreements and understandings, and any and all contemporaneous
oral agreements and understandings (excluding any associated agreements
required by Black Castle Design® (e.g., privacy policy) as a condition precedent
to Clients’ use of the Service), between you and Black Castle Design®
regarding the subject matter of these Terms and Conditions.
(b) Amendment. No modification, amendment, or waiver of these
Terms and Conditions or any part hereof shall be binding unless
evidenced in writing and signed by Black Castle Design®.
(c) Severability. If any provision of these Terms and Conditions
is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, then such provision shall be deemed null and
void, but the remaining provisions shall continue in full force
without being impaired or invalidated in any way.
(d) Mutual Participation. The language of these Terms and Conditions
shall be deemed to be the language mutually chosen by the parties
and no rule of strict construction shall be applied against or
in favor of either party hereto.
(e) Headings. The section headings and other headings contained
herein shall not affect the meaning or interpretation of these
Terms and Conditions.
(f) Choice of Law; Forum. These Terms and Conditions shall be
governed by the substantive law of the State of California, without
reference to any choice of law rules that would result in the
application of the substantive law of any other jurisdiction.
The parties agree that any disputes arising out of or relating
to these Terms and Conditions shall be submitted to the federal
courts having jurisdiction in Sacramento, California, or state courts
having jurisdiction in the area in which such federal courts have
jurisdiction, and the parties consent to the personal jurisdiction
of such courts with respect to such disputes.
(g) Assignment. You may not assign or otherwise transfer (by operation
of law or otherwise) any of your rights or duties hereunder unless
Black Castle Design® agrees in writing after receiving prior written notice.
Any attempted assignment or other transfer without the requisite
consent shall be null and void ab initio. Black Castle Design® may assign
or otherwise transfer any of its rights or the performance of
any of its duties without your consent.
(h) Waiver. The waiver by Black Castle Design® of a breach or a violation
of any provision of these Terms and Conditions shall not operate
as or be construed to be a waiver of any subsequent breach or
violation of any provision of these Terms and Conditions.
(i) Independent Contractors. The parties and their respective
personnel are and shall be independent contracts and neither party
by virtue of these Terms and Conditions shall have any right,
power or authority to act or create any obligation, express or
implied, on behalf of the other party.
(j) Force Majeure. If the performance of any part of these Terms
and Conditions by either party is prevented, hindered, delayed
or otherwise made impracticable by reason of any flood, riot,
fire, judicial or governmental action, labor disputes, act of
God or any other causes beyond the control of either party, that
party shall be excused from such to the extent that such performance
is prevented, hindered or delayed by such causes.
(k) Capacity. The parties hereby warrant and represent that they
have all necessary rights and authority to execute these Terms
and Conditions and to fulfill their obligations hereunder.
(l) Further Assurances. The parties hereto shall, at their own
cost and expenses, execute and deliver such other documents, artwork,
programming code and instruments and shall take such other action
as may reasonably be required or appropriate to evidence or carry
out the intent and purposes of these Terms and Conditions.
