Terms of Use

IMPORTANT!  THESE TERMS OF USE GOVERN YOUR USE OF THIS SITE, WHICH IS PROVIDED BY POMME LLC (“POMME”).  BY ACCESSING THIS SITE, YOU ARE INDICATING YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THESE TERMS OF USE.  THESE TERMS OF USE ARE SUBJECT TO CHANGE BY POMME AT ANY TIME IN ITS DISCRETION.  YOUR USE OF THIS SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES.  PLEASE CONSULT THESE TERMS OF USE REGULARLY.

1.          Access To This Site

To access this site or some of the resources it has to offer, you may be asked to provide certain registration details or other information.  It is a condition of your use of this site that all the information you provide on this site will be correct, current, and complete.  If POMME believes the information you provide is not correct, current, or complete, POMME has the right to refuse you access to this site or any of its resources, and to terminate or suspend your access at any time.

2.          Restrictions On Use

You may use this site for purposes expressly permitted by this site.  You may not use this site for any other purpose, including any commercial purpose, without POMME’s express prior written consent.  For example, you may not (and may not authorize any other party to) (i) co‑brand this site, or (ii) frame this site, or (iii) link to this site, without POMME’s express prior written consent.  For purposes of these Terms of Use, “co‑branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute this site or content accessible within this site.  You agree to cooperate with POMME in causing any unauthorized co-branding, framing or linking immediately to cease.

3.          Proprietary Information

The material and content accessible from this site, and any other World Wide Web site owned, operated, licensed, or controlled by POMME (the “Content”) is the proprietary information of POMME or the party that provided the Content to POMME, and POMME or the party that provided the Content to POMME retains all right, title, and interest in the Content.  Accordingly, the Content may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without POMME’s express prior written consent, except that you may print out a copy of the Content solely for your personal use.  In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.  Modification or use of the Content except as expressly provided in these Terms of Use violates POMME’s intellectual property rights.  Neither title nor intellectual property rights are transferred to you by access to this site.

4.          Links

This site may be linked to other sites that are not maintained by, or related to, POMME.  Links to such sites are provided as a service to users and are not sponsored by or affiliated with this site or POMME.  POMME has not reviewed any or all of such sites and is not responsible for the content of those sites.  Links are to be accessed at the user’s own risk, and POMME makes no representations or warranties about the content, completeness or accuracy of these links or the sites linked to this site.  Further, the inclusion of any link to a third-party site does not necessarily imply endorsement by POMME of that site.

5.          Submissions

You hereby grant to POMME the royalty-free, perpetual, irrevocable, worldwide, non‑exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated to POMME through this site (collectively, the “Submission”), and to incorporate any Submission in other works in any form, media, or technology now known or later developed.  POMME will not be required to treat any Submission as confidential, and may use any Submission in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future POMME operations.

6.          User Content

All submissions posted by you or other users (collectively, “Users”) on this site (collectively, “User Content”) are the sole responsibility of the User who posted such User Content.  This means that you, and not POMME, are entirely responsible for all User Content that you upload, post, transmit or otherwise make available on this site, including personally identifying information.  When you post User Content on this site, your user name may be visible to other Users and attached to the User Content that you posted.  Please be aware that if you post personal information online that is accessible to other Users, such as your physical address or e-mail address, you may receive unsolicited messages from other Users.  POMME does not control the User Content posted by you or other Users on this site and, as such, does not guarantee the accuracy, integrity or quality of such User Content. By using this site, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will POMME be liable in any way for any User Content, including, without limitation, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available on this site. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content.

7.          Representations and Warranties

You represent, warrant, and covenant that (a) you own the User Content posted by you on this site; and (b) your posting or transmitting of User Content on or through this site does not, and will not, infringe, violate or misappropriate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights or any other rights of any person or entity.  You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content posted by you on this site.

8.          Complaints about User Content

8.1 Policy. POMME does not tolerate any acts of intellectual property infringement or violations of U.S. law or this Agreement with respect to User Content posted on this site.  We are committed to removing any User Content that we believe infringes the intellectual property rights of another person or that otherwise violates the provisions of this Agreement.  The provisions of this Section 8 are intended to implement this policy but are not intended to impose a contractual obligation on us to undertake, or refrain from undertaking, any particular course of conduct.

8.2 Complaint Procedures. If you believe that someone has posted User Content that violates this Agreement (other than cases of copyright infringement, which are addressed in Section 14 below), we ask you to promptly notify us by e-mail at the following address:  goodsamaritan@pommellc.com.  You must use this address if you want to ensure that your complaint is actually received by the appropriate person charged with investigating alleged violations.  In order to allow us to respond effectively, please provide us with as much detail as possible, including (a) the nature of the violation of this Agreement; (b) all facts that lead you to believe that a violation has occurred; (c) the precise location where the offending User Content is located; and (d) if known, the identity of the person or persons who posted the offending User Content.

8.3 Indemnification/Waiver of Certain Rights. By filing a complaint under this Section 8, you agree that the substance of your complaint will be deemed to constitute a representation made under penalty of perjury under the laws of the State of New York.  In addition, you agree, at your own expense, to defend and indemnify POMME, its members, subsidiaries, affiliates, parents, licensors, service providers, content providers, suppliers, contractors, employees, agents, advisors, officers and directors (the “Indemnified Parties”), including as respects attorneys’ fees, and to hold the Indemnified Parties harmless from and against all claims that may be asserted against any of the Indemnified Parties, and/or loss and/or liability that may be imposed upon any of them, and from and against any and all damages, judgments, awards, costs, expenses, and attorneys’ fees resulting from your complaint and/or our response to it.  You waive any and all claims or remedies that you might otherwise be able to assert against any of the Indemnified Parties under any theory of law (including, but not limited to, intellectual property laws) that arise out of or relate in any way to our response, or failure to respond, to a complaint.

8.4 Investigation/Liability Limitation. You agree that POMME has the right (but not the obligation) to investigate any complaint received.  By reserving this right, we do not undertake any responsibility in fact to investigate complaints or to remove, disable, or restrict access to or the availability of User Content.  We support free speech on the Internet and therefore will not act on complaints that we believe, in our subjective judgment, to be deficient.  If you believe that User Content remains on this site that violates your rights, your sole remedy will be against the person(s) responsible for posting or storing it, not against us.

9.          Privacy Policy

POMME will treat any personal information that you submit through this site in accordance with its Privacy Statement.

10.       Disclaimer

You understand that POMME cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties.  You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to this site for the reconstruction of any lost data.  POMME does not assume any responsibility or risk for your use of the Internet.

The Content is not necessarily complete and up-to-date and should not be used to replace any written reports, statements, or notices provided by POMME.  Investors, borrowers, and other persons should use the Content in the same manner as any other educational medium and should not rely on the Content to the exclusion of their own professional judgment.  Information obtained by using this site is not exhaustive and does not cover all issues, topics, or facts that may be relevant to your goals.

YOUR USE OF THIS SITE IS AT YOUR OWN RISK.  The Content is provided “as is” and without warranties of any kind, either expressed or implied.  POMME disclaims all warranties, including any implied warranties of merchantability, fitness for a particular purpose, TITLE, OR NON-INFRINGEMENT.  POMME does not warrant that the functions OR CONTENT contained in this site will be uninterrupted or error-free, that defects will be corrected, or that this site or the server that makes it available are free of viruses or other harmful components.  POMME does not warrant or make any representation regarding use, or the result of use, of the content in terms of accuracy, reliability, or otherwise.  The content may include technical inaccuracies or typographical errors, and POMME may make changes or improvements at any time.  You, and not POMME, assume the entire cost of all necessary servicing, repair or correction IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR ITS CONTENT.  POMME MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.

All of the information in this site, whether historical in nature or forward-looking, speaks only as of the date the information is posted on this site, and POMME does not undertake any obligation to update such information after it is posted or to remove such information from this site if it is not, or is no longer, accurate or complete.

11.       Limitation On Liability

POMME, ITS MEMBERS, SUBSIDIARIES, AFFILIATES, PARENTS, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, SUPPLIERS, CONTRACTORS, EMPLOYEES, AGENTS, ADVISORS, OFFICERS AND DIRECTORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, EXEMPLARY, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF POMME OR ANY OF THE PERSONS AND/OR ENTITIES LISTED IN THIS PARAGRAPH 11 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL THE COLLECTIVE LIABILITY OF POMME AND ANY ONE OR MORE OF THE PERSONS AND/OR ENTITIES LISTED IN THIS PARAGRAPH 11 TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO POMME FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE.

12.       Indemnity

You will defend and indemnify the Indemnified Parties, including as respects attorneys’ fees, and will hold them harmless from and against all claims that may be asserted against any of the Indemnified Parties, and/or loss and/or liability that may be imposed upon any of them, and from and against any and all damages, judgments, awards, costs, expenses, and attorneys’ fees resulting from any (a) breach of these Terms of Use by you, or by a person for whom or an entity for which you bear legal responsibility, including any use of Content other than as expressly authorized in these Terms of Use, and/or (b) claims brought by third parties arising out of your use of the information accessed from this site, or that of a person for whom or an entity for which you bear legal responsibility.  You agree that the Indemnified Parties will have no liability in connection with any such breach, unauthorized use, and/or claim.

13.       Trademarks

Trademarks, service marks, and logos appearing in this site are the property of POMME or the party that provided the trademarks, service marks, and logos to POMME.  POMME and any party that provided trademarks, service marks, and logos to POMME retain all rights with respect to any of their respective trademarks, service marks, and logos appearing in this site.

14.       Copyright Infringement

POMME respects the intellectual property rights of others and expects its Users to do the same.  If you believe that your work has been copied and posted on this site in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please send POMME’s Copyright Agent a notification of claimed infringement, as described in the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3), with the information set forth in the DMCA, including all of the following information:  (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on this site (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address; (d) a 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; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) your physical or electronic signature.  POMME’s Copyright Agent for notification of claimed infringement can be reached as follows:  POMME LLC, 475 Park Avenue South, 26th floor, New York, New York 10016, Attn:  Copyright Agent.  Please note that you may be liable for damages, including court costs and attorneys fees, if you materially misrepresent that Content on this site is copyright infringing.  Filing a false claim for copyright infringement with POMME’s Copyright Agent constitutes perjury.

15.       Information You Provide

Neither you, nor any person for whom or any entity for which you bear legal responsibility, may post, send, submit, publish, or transmit in connection with this site any material that:

  • you, or a person for whom or an entity for which you bear legal responsibility, do not have the right to post, including proprietary material of any third party;
  • advocates illegal activity or discusses an intent to commit an illegal act;
  • is vulgar, obscene, pornographic, or indecent;
  • does not pertain directly to this site;
  • threatens or abuses others, libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
  • seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
  • infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
  • violates any law or may be considered to violate any law;
  • impersonates or misrepresents your connection, or that of a person for whom or an entity for which you bear legal responsibility, to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
  • advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as may be specifically authorized on this site;
  • solicits funds, advertisers or sponsors;
  • includes programs containing viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
  • disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise acts in a way that affects the ability of other people to engage in real time activities via this site;
  • includes MP3 format files;
  • amounts to a ‘pyramid’ or similar scheme;
  • disobeys any policy or regulations established from time to time regarding use of this site or any networks connected to this site; or
  • contains links to other sites that contain content that falls within the descriptions set forth above.

POMME reserves the right to monitor use of this site to determine compliance with these Terms of Use, as well the right to remove or refuse any information for any reason.  Notwithstanding these rights, you remain solely responsible for the content of your submissions and/or for those of a person for whom or an entity for which you bear legal responsibility.  You acknowledge and agree that neither POMME nor any third party that provides Content to POMME will assume or have any liability for any action or inaction by POMME or such third party with respect to any submission.

16.       Security

Any passwords used for this site are for individual use only. You will be responsible for the security of your password (if any).  POMME will be entitled to monitor your password and, at its discretion, require you to change it.  If you use a password that POMME considers insecure, POMME will be entitled to require the password to be changed and/or terminate your account.

You are prohibited from using any services or facilities provided in connection with this site to compromise security or tamper with system resources and/or accounts.  The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited.  If you become involved in any violation of system security, POMME reserves the right to release your details to system administrators at other sites in order to assist them in resolving security incidents.  POMME reserves the right to investigate suspected violations of these Terms of Use.

POMME reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing POMME to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms of Use.  BY ACCEPTING THIS AGREEMENT YOU EXPRESSLY WAIVE ANY CLAIMS AGAINST POMME AND/OR AGAINST ANY OF THE OTHER INDEMNIFIED PARTIES BY REASON OF ANY ACTION TAKEN BY POMME IN CONNECTION WITH ANY INVESTIGATION BY IT OR BY LAW ENFORCEMENT AUTHORITIES AND YOU AGREE TO HOLD HARMLESS POMME AND THE OTHER INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS THAT MAY BE ASSERTED AGAINST ANY OF THEM AND/OR LOSS AND/OR LIABILITY THAT MAY BE IMPOSED UPON ANY OF THEM, AND FROM AND AGAINST ANY AND ALL RESULTING DAMAGES, JUDGMENTS, AWARDS, COSTS, EXPENSES, AND ATTORNEYS’ FEES IN CONNECTION THEREWITH.

17.       Independent Review

YOU ACKNOWLEDGE THAT YOU: HAVE READ THIS AGREEMENT, AGREE TO ALL ITS TERMS AND CONDITIONS, HAVE INDEPENDENTLY EVALUATED ALL ASPECTS OF IT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN IT, AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.

18.       Arbitration

THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, OR THIS SITE, WILL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, or you have otherwise violated any of the user conduct rules set forth in this Agreement, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought; and (b) no disputes or claims relating to any transactions you enter into with a third party may be arbitrated.

Arbitration under this Agreement will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively, the “AAA Rules”).  The location of the arbitration will be in New York City, New York and the allocation of costs and fees for such arbitration will be determined in accordance with such AAA Rules and will be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes).  The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THIS SITE, AND NO CLASS ARBITRATION PROCEEDINGS WILL BE PERMITTED.  In no event will any claim, action or proceeding by you related in any way to this site be instituted more than three (3) years after the cause of action arose.  EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

19.       Miscellaneous

These Terms of Use, and all matters arising directly or indirectly therefrom, including, but not limited to, any disputes or controversies directly or indirectly arising under or related hereto, shall be governed by, decided under, interpreted and construed in accordance with the substantive law of the State of New York without regard to any conflicts of laws principles or any other rule of law that would result in the application of the substantive law of any other jurisdiction.  You specifically consent to personal jurisdiction in the State of New York in connection with any dispute or controversy between you and POMME and/or any of the other Indemnified Parties arising directly or indirectly from these Terms of Use or pertaining to the subject matter hereof.  The parties to these Terms of Use each agree that, with respect to any dispute or controversy between the parties arising out of these Terms of Use or pertaining to the subject matter of these Terms of Use that is not subject to Paragraph 18 above, the exclusive venue for any dispute or controversy will be in the state and federal courts in New York, New York.  If any part of these Terms of Use is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. These Terms of Use constitute the entire agreement between the parties relating to this subject matter.  Notwithstanding the foregoing, any additional terms and conditions on this site will govern the items to which they pertain.  POMME may revise these Terms of Use at any time by updating this posting.

20.       Information for California Residents

Under California Civil Code Section 1789.3, Users located in California are entitled to the following consumer rights information:  (a) This site is provided by POMME located at 475 Park Avenue South, 26th floor, New York, New York 10016, (b) You may contact POMME at the address in subsection (a) immediately above with complaints or to request additional information about this site.  Also, the Complaint Assistance Unit of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at (916) 445-1254.

Last updated: February 12, 2011.

© POMME LLC 2011 – All rights reserved

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