The information, data, text, software, photographs, images, graphics, organization, layout, design, and other content contained on or provided through this Site (collectively, the "Content") are proprietary to BENSHERMAN.COM and its licensors, and are protected by copyright and other U.S. and international intellectual property rights, laws and treaties. The Content includes proprietary databases (the "Database") of service providers' information, which, by way of example, include information, text, photographic and other images and data contained therein (collectively, the "Information") and the proprietary organization and structures for categorizing, sorting and displaying such Information, and the related software ("Software"). The Site, Content, Database, Information, Software and any portion of the foregoing, including any derivatives, successors, updates or modifications provided thereto and any information derived from the use of the Database, including as a result of the verification of any portion of the Information, are collectively referred to herein as the "Product".
You acknowledge and agree that BENSHERMAN.COM may interrupt or terminate or block your access to the Product or portions thereof at any time. In the event that occurs, you shall cease using any portion of the Product, permanently delete or destroy all portions of the Product within your possession, custody or control, and, upon written request from BENSHERMAN.COM, certify, in writing, your compliance with this provision.
This Product may include opportunities for users to submit information, data, text, photographs, images, graphics, and other content to the Product, for it to be publicly displayed on the Product, used by BENSHERMAN.COM in connection with placing consumers to service providers, or for some other purpose ("Submitted Content"). BENSHERMAN.COM acknowledges that if you provide BENSHERMAN.COM with any information or images, then you retain any applicable ownership rights that you may have with respect to such information and images. However, you understand that all such Submitted Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated. This means that you, and not BENSHERMAN.COM, are entirely responsible for all such content that you upload, post, e-mail or otherwise transmit to or via the Product. BENSHERMAN.COM is under no obligation to post or use any such Submitted Content you may provide and may remove any such content at any time in BENSHERMAN.COM's sole discretion.
With respect to all Submitted Content you elect to upload, post, e-mail or otherwise transmit to or via the Product, you grant BENSHERMAN.COM and its affiliates and their licensees a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license (through multiple tiers) to use, reproduce, adapt, perform, display, publish, translate, prepare derivative works from, modify, distribute, sell, and take any other action with respect to such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You further acknowledge and agree that BENSHERMAN.COM may preserve any such content and may also disclose such content in its discretion.
You represent and warrant that (a) you own or have the full right, power and authority to grant to BENSHERMAN.COM use of and rights in and to all Submitted Content that you upload, post, e-mail or otherwise transmit to or via the Product; (b) your license of such content to BENSHERMAN.COM hereunder does not, and the use or license of such content by BENSHERMAN.COM to third parties will not, infringe any right or interest owned or possessed by any third party; and (c) there are no claims, judgments or settlements to be paid by you, or pending claims or litigation, relating to such content.
BENSHERMAN.COM does not endorse and is not responsible or liable for any Content, Service Provider Content, data, advertising, products, goods or services available or unavailable from, or through, any service providers. You agree that should you use or rely on such Content, service provider Content, data, advertisement, products, goods or services, available or unavailable from, or through any service provider, BENSHERMAN.COM is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any service provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such service provider exclusively and do not involve BENSHERMAN.COM. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging service providers.
You agree that BENSHERMAN.COM is not responsible for the accessibility or unavailability of any service provider or for your interactions and dealings with them, waive the right to bring or assert any claim against BENSHERMAN.COM relating to any interactions or dealings with any service provider, and release BENSHERMAN.COM from any and all liability for or relating to any interactions or dealings with service providers.
The Content available through the Product may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of BENSHERMAN.COM, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Your interactions with organizations and/or individuals found on or through the Product, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
You agree that BENSHERMAN.COM shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that BENSHERMAN.COM is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release BENSHERMAN.COM, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and / or our service.
Information about You
When you use the Product, BENSHERMAN.COM collects both personally and non-personally identifying information about you and your use of the Product. Such information includes (a) what you intentionally submit to us while using the Product, including, for example, by filling out forms with your contact information or by logging in with your User ID and password, and (b) information that may be collected automatically while you use the Product, including, for example, your IP address, your IP host, session duration, and "click stream" data that tracks user activity in the Product. We generally use or disclose the information we collect through the Product to conduct research on and to improve the Product, to perform customer service and support, to fulfill your requests for services, and to provide you with information regarding our services, including service-related announcements.
BENSHERMAN.COM takes steps to protect the security of the personally identifiable information we collect including, for example, physical, electronic, and procedural safeguards.
Although the Product can technically be viewed by children, we do not knowingly request personally identifiable information from them nor does the Product publish content that is targeted to children. No information should be submitted to, or posted at, the Product by visitors under 18 years of age. By agreeing to the Terms and Conditions, you represent and warrant that you are above the age of eighteen (18).
If you have a further question, please notify us by e-mail at Lori@MitchellSimone.com. We will do our best to look into your request and respond promptly.
Linking to any page of the Site other than to http://www.BENSHERMAN.COM through a plain text link is strictly prohibited in the absence of a separate linking agreement with BENSHERMAN.COM. Any web site or other device that links to http://www.BENSHERMAN.COM or any page available therein is prohibited from (a) replicating the Product, (b) using a browser or border environment around the Product, (c) implying in any fashion that BENSHERMAN.COM or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with BENSHERMAN.COM or any of its affiliates, (e) presenting false information about BENSHERMAN.COM products or services, and (f) using any logo or mark of BENSHERMAN.COM or any of its affiliates without express written permission from BENSHERMAN.COM. Except as set forth in the preceding sentence, or as otherwise authorized by BENSHERMAN.COM in writing, links to and the framing of the Product is prohibited. The Product may include links to other sites, some of them operated by BENSHERMAN.COM and some of them operated by third parties. Under no circumstances shall BENSHERMAN.COM be deemed to be associated or affiliated with, or viewed as endorsing or sponsoring, any web site that links to this Site, or is linked to from this Site, or any services that may be offered through such web sites. BENSHERMAN.COM has not necessarily reviewed any or all of the content of such other web sites, and we disclaim responsibility for the content and services available therein. Different terms and conditions may apply to your use of any linked sites. It is your responsibility to review any such terms and conditions in connection with your use of any such sites. Any issues or disputes that may arise with respect to any such sites shall solely be between you and the applicable third party.
Information Regarding Accuracy, Completeness and Timeliness of Information in the Product
The Product is provided for general information only and should not be relied upon or used as the basis for making significant decisions without consulting primary or more accurate, more complete or timelier sources of information. Any reliance upon the Product shall be at your own risk. Neither we, nor any third party involved in creating, producing or delivering the Product, is responsible if the Product is not accurate, complete or current. Neither we, nor any third party involved in creating, producing or delivering the Product, has any responsibility for any consequence relating directly or indirectly to any action or inaction that you take based on the Product.
NONE OF THE BENSHERMAN.COM PARTIES SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER OR FROM ANY DELAY IN THE PERFORMANCE THEREOF DUE TO CAUSES BEYOND BENSHERMAN.COM'S CONTROL, INCLUDING, WITHOUT LIMITATION, INDUSTRIAL DISPUTES, ACTS OF GOD OR GOVERNMENT, PUBLIC ENEMY, WAR, FIRE, OTHER CASUALTY, FAILURE OF ANY LINK OR CONNECTION WHETHER BY COMPUTER OR OTHERWISE, OR FAILURE OF TECHNOLOGY OR TELECOMMUNICATIONS OR OTHER METHOD OR MEDIUM OF STORING OR TRANSMITTING THE PRODUCT.
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."
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BENSHERMAN.COM CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF ADVERTISING FEES TO BENSHERMAN.COM THROUGH THE USE OF A CREDIT CARD (A "CREDIT CARD PROCESSOR"). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR BENSHERMAN.COM, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE "RELEASED PARTIES") SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN) SUFFERED BY YOU AS A RESULT OF THE FAILURE OF BENSHERMAN.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BENSHERMAN.COM. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF BENSHERMAN.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BENSHERMAN.COM. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS PARAGRAPH.
If you create any settings, surveys, fields or functions in the Product or input, add or export any data into or from the Product (collectively, the "User Data"), none of the BENSHERMAN.COM Parties shall have any liability or responsibility for any of such User Data, including the loss, destruction or use by third parties of such User Data. It is your responsibility to make back-up copies of such User Data.
Some areas of this Product use and require that your computer accept "cookies". Cookies are small text files that are stored on your computer to keep track of settings or data for a particular web site. Cookies make it possible and easier for you to access and use certain areas of this Product. If you have disabled cookies from within your browser, or if you are running third-party software that intercepts or deletes cookies, you may not be able to visit certain areas of the Product.
The Product employs various trademarks and service marks of BENSHERMAN.COM and of other third parties. All of these trademarks and service marks are the property of their respective owners. You agree not to use or display them in any manner without the prior written permission of the applicable trademark owner.
Procedure for Making Notification of Claims of Copyright Infringement
NOTICE -- U.S. Government Rights/Commercial Technical Data and Software Unpublished, Rights Reserved Under the Copyright Laws of the United States
Modifications to Product; Changes to these Terms
The Website contains functionalities and services that allow sending, delivering or receiving information between users, which may be relayed or carried through BENSHERMAN.COM, public, third parties' or other networks, systems, servers, websites or applications (e.g. telephone and cellular networks, email servers etc.) (the "Third Parties' Network"). The Third Parties' Networks are not controlled by BENSHERMAN.COM in any way and BENSHERMAN.COM shall not be responsible for the performance, availability, functionality, quality or reliability of any of the Third Parties' Networks or the information sent, delivered, relayed, carried or received through the Third Parties' Networks. Notwithstanding anything herein, BENSHERMAN.COM does not warrant or guarantee that the information sent, relayed, carried or delivered through these Third Parties' Networks will reach its destination or its correct address or recipient or that the details of the recipient or sender are correct or accurate. BENSHERMAN.COM shall not be liable for, and excused from, any failure to deliver or perform, or for any delay in delivery or performance, due to causes beyond its reasonable control, after exercising its best commercially reasonable efforts to remedy any such failure or delay, including without limitation any government actions, fire, work stoppages, civil disturbances, interruptions of power or communications to BENSHERMAN.COM or any facilities used by or for BENSHERMAN.COM failure of internet, hosting, telecommunications, or other services to BENSHERMAN.COM or facilities used by or for BENSHERMAN.COM, natural disasters, acts of God, or acts of terrorism or war.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and BENSHERMAN.COM as a result of these Terms and Conditions or your use of the Website.
BENSHERMAN.COM performance under these Terms and Conditions is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of BENSHERMAN.COM right to comply with law enforcement requests or requirements relating to your use of this Website or information provided to or gathered by BENSHERMAN.COM with respect to such use.
If you are found to be in breach or violation of these Terms and Conditions, you agree to pay the actual damages suffered by BENSHERMAN.COM, including, but not limited to, attorney fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms and Conditions, BENSHERMAN.COM reserves the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms and Conditions.
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