We are pleased to welcome you to MishTalk.com (the Website or the Site), operated by Michael “Mish” Shedlock. These Terms and Conditions of Use (Terms of Use or Terms) govern your access to and use of the Website. In these Terms of Use the words “you” and “your” refer to each customer, user, site guest, or visitor. “We”, “us” and “our” refer to MishTalk, its subsidiaries, successors in interest and assigns, and the Website.
Please read these terms of use carefully before using this Website and make sure you understand them. These Terms of Use, including all documents referenced herein, represent the entire understanding and agreement between MishTalk and you regarding your use of this Website and supersede any prior statements or representations. This Website’s Privacy Policy is incorporated into these Terms of Use by reference and is made a part hereof. You are not authorized to use this Website if you do not agree to be legally bound by any or all of these Terms and Conditions.
Consent to Terms and Conditions
By accessing or using the Website, you agree that you have read and understood the Terms of Use and agree that you will comply with same for as long as you use the Website. Your access to the Website signifies your acceptance of these Terms of Use and your acknowledgment that you are legally bound by them.
Use of this Website
Access to, distribution, and/or use of this Website is subject to all applicable laws and regulations. To the extent that access to, distribution, and/or use of this Website would be deemed illegal by applicable law, such access, distribution, and/or use is prohibited. Each time you visit any area on the Website and/or register for any interactive functionality of the Website, you are deemed to have confirmed your acceptance of these Terms of Use and the Website’s Privacy Policy. If you do not agree to abide by these Terms of Use and the Privacy Policy, please do not use this Website. By having accepted these Terms of Use, and/or entering and participating in any activities offered on this Website, you affirm, represent, and warrant that: (a) you are 14 years of age or older, provided, however, that you if shop on the Site and are between the ages of 14 and 18, you have obtained the consent of your parent or guardian to do so; (b) all information you submit via the Website shall be truthful and accurate (and you will maintain the accuracy of such information); (c) you will abide by these Terms of Use; and (d) your use of the Website shall not otherwise violate any applicable law, rule or regulation.
Changes to the Terms of Use
From time to time, these Terms of Use may change. MishTalk reserves the right to modify these Terms of Use without prior individual notice. We will post changes to the Terms of Use on this Website and changes will become effective once posted. Your continued access to or use of the Website will be deemed as acceptance by you of the then-current Terms of Use. Please review these Terms of Use often so that you will remain abreast of our current policies.
You can tell when the Terms of Use were last modified by checking the “last updated” date that appears at the top.
Description of Services
MishTalk provides Site visitors with information about MishTalk, its products, promotions, events, enables you to purchase MishTalk products, and to sign up for other social media platforms, including Facebook, Instagram, and Twitter (the “Services”).
Ownership of the Website and Services
This Website and the Services provided by MishTalk on the Website are owned or licensed by MishTalk. MishTalk has the right to use, and/or owns or controls the materials on this Website, including but not limited to, images, logos, and trademarks (collectively referred to as the “Materials”). MishTalk hereby grants you permission to use the Website as set forth in these Terms of Use but nothing in these Terms shall be construed to confer upon you any license of or under any of MishTalk’s intellectual property rights in the Materials.
You acknowledge that you have no ownership rights in the Materials. You further understand and agree that you will not use any trademarks, trade names, services marks, copyrights, or logos owned or controlled by MishTalk (collectively, “MishTalk’s intellectual property”) in any manner except with MishTalk’s consent.
Except as otherwise indicated on this Website, copying, reproducing, uploading, downloading, transmitting or any other use of this Website or of any of the Materials, in whole or part, without the express permission of MishTalk, is prohibited. Any unauthorized access to, use or copying of this Website and/or the Materials may subject you to liability under applicable law.
Provision of the Services by MishTalk
MishTalk seeks to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which MishTalk provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that MishTalk may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally, at MishTalk’s sole discretion.
Disputes with MishTalk
If you have a dispute with MishTalk relating to the Website or the Services, please contact us at “Mike Shedlock @ Gmail .com” without the quotes or spaces, and we will attempt to resolve the dispute with you. If we cannot resolve our dispute, then the Terms of Use will govern any legal dispute involving our Services.
Password Responsibility
You are responsible for maintaining the confidentiality of your password. You agree not to (i) use the account; username, or password of any other user of the Site at any time; (ii) share your account; or (iii) disclose your password to any third party. You agree to notify MishTalk immediately if you suspect any unauthorized access to or use of your account or password. You are solely responsible for any and all use of your account and password.
Use in the United States
This Website is intended for use within the United States and we control and operate the Website from the United States.
Links
The Website may contain links to other applications, websites, and social media features that are not controlled and/or maintained by MishTalk. Access to and use of such other websites is at your own risk and subject to any Terms of Use and Privacy Policies which govern such websites. By providing such links, MishTalk shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information, promotions, and/or products found on such websites. MishTalk is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites, or for any damages that may result therefrom. Copyrights in the materials or information on the linked websites are owned by other organizations. Moreover, such other websites may have privacy policies or terms of use that differ from those of the Website and/or may provide their users with less security than the Website. Accordingly, you should review the privacy policies and terms of use on such other sites before using them.
Your Responsibilities
You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a backup of all data and/or your equipment. You agree that you will not upload any spyware or malicious software to the Website.
You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Site and the Services.
User Conduct
In connection with your use of the Website and the Services, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
- use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Website, Services or Materials;
- use the Website, Services or Materials for any commercial or other purposes that are not expressly permitted by these Terms of Use or in a manner that falsely implies MishTalk’s endorsement, partnership or otherwise misleads others as to your affiliation with MishTalk;
- dilute, tarnish or otherwise harm the MishTalk brand in any way, including through unauthorized use of the Materials, registering and/or using MishTalk or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to MishTalk’s domains, trademarks, taglines, promotional campaigns or other Materials;
- copy, store or otherwise access or use any information contained on the Website, Services or Materials for purposes not expressly permitted by these Terms of Use;
- infringe the rights of MishTalk or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right;
- interfere with or damage our Website or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
MishTalk may elect to terminate your access to the Website immediately and without notice to you in the event that you violate any of these rules of conduct.
Limitation of Liability and Warranty and Use Disclaimer
MishTalk endeavors to make sure that all information and data it originates on the Website is accurate. However, MishTalk is not responsible for any damages or loss related to the use of this Website.
THIS WEBSITE, ALL CONTENT AND MATERIAL CONTAINED ON THIS WEBSITE, ALL SERVICES PROVIDED ON THIS WEBSITE AND ALL LINKS OR OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED “AS IS” AND TO THE FULLEST EXTENT PERMITTED AT LAW WITHOUT GUARANTEES, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITE AND/OR ITS FEATURES AND FUNCTIONS WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED. THERE ARE NO GUARANTEES, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS REGARDING TITLE, SECURITY, ACCURACY, ACCEPTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITE OR THE MATERIALS AND CONTENT CONTAINED HEREON. ANY INFORMATION CONTAINED WITHIN OR ON THIS WEBISTE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING. MISHTALK RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THIS WEBISTE WITHOUT NOTICE AT ANY TIME AND TO THE FULLEST EXTENT PERMITTED AT LAW, AND ACCEPTS NO RESPONSIBILITY FOR THE WEBSITE OR SERVICES NOT BEING AVAILABLE AT ALL TIMES.
SUBJECT TO THE SAVINGS CLAUSE, NEITHER MISHTALK (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES), NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS WEBSITE, SHALL BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL AND/OR ANY OTHER DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS APPLICATION OR FROM ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN WHICH CASE THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY LAW, MISHTALK (A) MAKES NO GUARANTEES, WARRANTIES, REPRESENTATIONS OR CONDITIONS ABOUT THE ACCURACY OR SUITABILITY FOR ANY PURPOSE OF ANY MATERIALS ON OR OTHER CONTENT OF THE WEBSITE OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE AND, (B) ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO, REPRODUCTION, DISTRIBUTION AND/OR USE OF THIS WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO, REPRODUCTION, DISTRIBUTION OR USE OF MISHTALK’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION STORED THEREON , (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE WEBSITE AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITE.
MishTalk is not responsible for any damages or loss related to your reliance on any outdated version of these Terms of Use, including, but not limited, to any outdated version of our Privacy Policy.
Certain jurisdictions prohibit the limitation of liability for certain types of damages or prohibit waivers against future fraud, and accordingly, such limitations or waivers may not apply to you. In such jurisdictions, MishTalk’s liability is limited to the greatest extent allowable under applicable law.
Indemnity
Unless prohibited by law, you agree to indemnify MishTalk, and each of its parent, subsidiary and affiliated entities, furnishing entities, officers, directors, members, employees, representatives, licensees, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) suffered, incurred or brought against any one or more of them by a third party relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms of Use; (ii) any content posted on the Website by you or through your account; (iii) your use of the Website; and/or (iv) any violation of these Terms of Use by you. You agree that your representations and warranties, and your obligation to indemnify MishTalk, shall survive beyond any term for which these Terms of Use are in effect.
Contact Us
If you have any questions concerning this Website or any of the policies set forth in these Terms of Use, please contact us at “Mike Shedlock @ Gmail .com” without the quotes or spaces.
Copyright Infringement – Notice and Take-Down Policy
MishTalk values intellectual property and respects the intellectual property rights of others, and will remove materials on its Website that infringe the copyrights of others. If you believe that your copyrighted material has been infringed by material contained on this Website, then pursuant to Title 17, United States Code, § 512, you may notify MishTalk.
Disputes and Governing Law
Use of this Website and these Terms of Use shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions. In the event that any portion of these Terms of Use are deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, unless narrowed by construction, such portion of these Terms of Use shall, for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable portion had been more narrowly constructed so as not to be invalid, prohibited or unenforceable (or if such provision cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify such portion of these Terms of Use to the extent necessary to make such portion of these Terms of Use enforceable in such jurisdiction, and such portion shall then be applicable in such modified form in such jurisdiction). If, notwithstanding the foregoing, any such portion of these Terms of Use would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such portion, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions set forth in these Terms of Use.
No narrowed construction, modification or invalidation of any portion of the Terms of Use shall affect the construction, validity or enforceability of such portion in any other jurisdiction.
No waiver by MishTalk of any term or condition of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and MishTalk’s failure to assert any right or demand compliance with any provision of these Terms of Use shall not be deemed to constitute a waiver of any such right or provision.
Except where prohibited by law, as a condition of you accessing and/or using this Website, you agree that, to the fullest extent permitted by law (1) any and all disputes and causes of action arising out of or connected with this Website shall be resolved individually (without resort to any form of class action) and exclusively by final and binding arbitration in New York within one year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association; and (2) judgment upon such arbitration award may be entered in any court having jurisdiction. Unless prohibited by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.
The rules governing arbitration are different than those in court. Arbitration does not involve a judge or jury and review is limited, but an arbitrator can award the same damages as a court. Except as may otherwise be provided in AAA’s Consumer Due Process Protocol that allows consumers to file certain claims in small claims court, you understand that by accepting these Terms and Conditions, you are giving up your right to a trial in court, either with or without a jury.
To the fullest extent permitted at law, under no circumstances will you be permitted to obtain an award for, and by accessing and/or using the Website you waive all rights to claim, punitive, incidental, consequential or any other indirect damages (including multiplied and/or increased damages and/or attorneys’ fees and court costs) for any dispute or cause of action that you may have that relates in whole or part to this Website, and/or the Materials on or other content of the Website. Notwithstanding anything to the contrary set forth in these Terms of Use or otherwise, your recovery with respect to any and all claims, judgments, and awards for which you are entitled shall, unless prohibited by law, be limited to your actual out-of-pocket costs incurred, excluding attorneys’ fees and court costs.
Notwithstanding anything to the contrary set forth in these Terms of Use, MishTalk may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York and/or in any other court that has jurisdiction, in the event that MishTalk believes that there is a violation, or a threatened violation, of any of MishTalk’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.