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  • TERMS AND CONDITIONS

    Effective Date: April 1, 2008

    The Test Common®website at www.testcommon.com (the " SITE ") and is operated by Test Common Inc. (hereinafter referred to as " COMPANY "). The SITE is open to all permanent, legal residents of the fifty (50) United States and the District of Columbia only ; however , you must be at least 18 years old to register for the services offered on this SITE , download any content from this SITE , upload any content to this SITE, or otherwise use any portion of the SITE (collectively, " SERVICE "); provided , further , however , if you are YOUNGER THAN 18 years of age (or YOUNGER THAN 19 years of age and a resident of Alabama or Nebraska, or YOUNGER THAN 21 years of age and a resident of Mississippi) at the earlier of viewing or time of registration on this SITE, YOU MUST HAVE OBTAINED THE CONSENT OF YOUR PARENT OR LEGAL GUARDIAN TO VIEW AND USE THIS SITE, AND OBTAINED THE AGREEMENT OF YOUR PARENT OR LEGAL GUARDIAN TO THESE TERMS . If you are not an intended viewer, please do not use or view the SITE.

    These terms and conditions of Service constitute a legal agreement (" Agreement ") between you and Test Common Inc., and between the subscriber of a participating mobile communications carrier (" Subscriber ") and Test Common Inc. By (a) completing the registration process on this TEST COMMON SITE, OR (b) by downloading content to a mobile device, including without limitation, downloading any ringtones, from this TEST COMMON SITE, (each a " Mobile Download "), OR (c) by downloading content to any other device or equipment, including without limitation, downloading any wallpapers, screen savers and/or audio to any computer, from this TEST COMMON SITE, (each a " PC Download "), OR (d) by uploading any content (including without limitation, any text, comment, question, suggestion, element, photograph, audio recording and/or video) to this TEST COMMON SITE and/or upload any content to third parties pursuant to information provided through use of the TEST COMMON SITE (each an " Upload "), you (1) represent that you are at least 16 years of age; (2) are a Subscriber, or have the consent of a subscriber of a participating mobile communications carrier to sign-up for and use the Service on behalf of the Subscriber; (3) agree on behalf of the Subscriber and yourself to be bound by the terms and conditions of this Agreement; and (4) if you are younger than 18 years of age (or younger than 19 years of age and a resident of Alabama or Nebraska, or younger than 21 years of age and a resident of Mississippi) at the earlier of viewing or time of registration on this TEST COMMON SITE, you have obtained the consent of your parent or legal guardian to view and use this SITE and have obtained the agreement of your parent or legal guardian to be bound by the terms and conditions of this Agreement . Even if you do not complete the registration process or otherwise use or access the Service, you will be bound by the terms and conditions of this Agreement (to the extent applicable to you) when you visit the TEST COMMON SITE. Any questions or comments regarding, or problems with, the TEST COMMON SITE should be sent to the TEST COMMON SITE Administrator at webmaster@testcommon.com.

    In this Agreement, " you " and " your " refer to each viewer or user (and, in the case of a minor, his/her parent or legal guardian), and his or her agents (unless the context requires otherwise), and " we ", " us " and " our " refer collectively to Test Common Inc. This Agreement explains our obligations to you, and your obligations to us, in relation to the TEST COMMON SITE and the Service.

    Please note that we may at any time revise this Agreement by updating this posting. You are bound by such revisions and should therefore visit this page to review the current terms and conditions of this Agreement from time to time.

    1. Description of Service

    The Service consists of (a) a feature permitting you to create your profile (" Profile ") after registering as a member (a " Member ") , (b) features, which may be available now, or may be launched in the future from time to time, permitting you to upload text and/or other items to the Test Common SITE (including without limitation, comments, questions, suggestions, chat, photographs, videos and/or audio recordings) (collectively, " Submissions "), (c) information available on the TEST COMMON SITE permitting you to communicate with other Members (including without limitation, instant messaging and/or other chat) on third party systems (collectively, " Instant Messaging "), (d) downloadable mobile entertainment content, such as ringtones, games, graphics, news, audio and other information data via the Internet, SMS, MMS, WAP, BREW and other means of mobile content delivery to certain compatible mobile devices (the " Other Data "), and (e) a forward to a friend feature for e-mail transmission to individuals and e-mail addresses you may identify (the "Forwarding E-Mail "). You acknowledge and agree that the Service is for your personal use only , and that you may not transmit, broadcast, upload to any computer or mobile device, create derivative works of, or make commercial use of the Service or any material provided or obtained through the Service , including, but not limited to, the names, images and other information used in any Profile, Submissions, Instant Messaging, Wallpaper, Other Data, and/or Forwarding E-Mail (the foregoing materials are, collectively, referred to herein as the " Content "), except as specifically permitted in this Agreement. You may not, or attempt to (or otherwise authorize, encourage or support others' attempts to), circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service or the Content, or any technology used to support the Service.

    2. Registration and Access to Service; disclosure of information

    (a) Access to the Service : You do not need to register to view certain features of the Profiles and Submissions, but you will need to register in order to (i) obtain certain Downloads, (ii) have access to information to permit Instant Messaging, (iii) initiate any Upload, or (iv) participate in the Forwarding E-Mail features.

    (b) Registration Data : If you opt to register for any part of the Service on the TEST COMMON SITE, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the registration form (" Registration Data ") and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If we have reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, or (in the event you are not the Subscriber) the Subscriber has not consented to your registration for the Service on behalf of the Subscriber, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You acknowledge and agree that we may send you important information and notices regarding the Service by email. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Service.

    (c) Profile Information : The information a Member provides in his/her Profile will be viewable by others visiting the TEST COMMON SITE ; provided , however , we do not intend to post on the TEST COMMON SITE for public viewing the following information you designated: (a) first name, (b) last name, (c) e-mail address, (d) password, or (e) zip code. ,

    (d) License to Content : You acknowledge and agree that the Content made available as part of the Service (including the Profile, Submissions, Wallpaper and Other Data) is owned by Test Common Inc., its affiliate and/or licensors, as applicable, and is protected by intellectual property laws. Test Common Inc. hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable right and license to use Content as necessary to download and use the Profile, Submissions, Instant Messaging, Wallpaper, Other Data and Forwarding E-Mail ONLY on your desktop solely for your own personal non-commercial use; provided, however, Other Data may be downloaded solely to your mobile device solely for your own personal non-commercial use . You further acknowledge and agree that: (i) you may not reproduce, duplicate, modify, perform, transfer, post, distribute, (including without limitation, forwarding to others, except as specifically permitted in the "E-Mail a Friend" feature set forth on the TEST COMMON SITE, and in those instances your friends should only use such items for their own personal use, and for no other purpose) sell, create derivative works of or otherwise use or make available any of the of the Content other than as specifically permitted above; and (ii) you may not reproduce, duplicate, perform, transfer, distribute or otherwise use the Content (including without limitation, the Profile, Submissions, Instant Messaging, Wallpaper, Other Data and Forwarding E-Mail) in any other manner not addressed herein. No rights are granted to you by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the Content, and any reproduction, duplication, modification, performance, transfer, distribution or exploitation of the Content (other than as specifically permitted in this Section 2(d) ) is prohibited. We neither warrant nor represent that your use of any Content will not infringe the rights of third parties. Any material, service, or technology described or used on the TEST COMMON SITE may be subject to other intellectual property rights owned by us or by third parties who have licensed to us such material, service, or technology. Any such right that is not expressly licensed herein is reserved by us. Your unauthorized use of any Content or Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and other applicable regulations and statutes.

    (e) Profiles; Submissions; Forwarding E-Mails; IM Communication Standards :

    (I)General terms : Please note that apart from your personal information (which is addressed in Section 2(c) above and Sections 2(f) and 3 below), any of your Profile, Submissions and Forwarding E-Mail to the TEST COMMON SITE, electronically or otherwise, including, but not limited to, comments, questions, suggestions, text in any e-mail transmission, video, images, photographs, or any other submissions, is and will be treated as non-confidential and non-proprietary as to you, unless specifically stated otherwise in Sections 2(c) , 2(f) or 3 hereof and/or the Privacy Policy . Any Profile information, Submissions and Forwarding E-Mail you provide to the TEST COMMON SITE may be used by us and our designees for any purpose, including, but not limited to, reproduction, transmission, disclosure, publication, broadcast, and posting. By providing any Profile information, Submission and/or Forwarding E-Mail to the TEST COMMON SITE, you irrevocably transfer and assign to us, and forever waive and agree never to assert, any copyrights, "moral" rights, or other rights that you may have in such material. We and our designees are free to use, without obligation of any kind, any ideas, concepts, techniques, or know-how contained in any communication (including without limitation, any Profile information, Submissions and/or Forwarding E-Mail) you send to the TEST COMMON SITE for any purpose whatsoever, without any further consent, notice and/or compensation to you or any third parties.

    (II) Text, Visual and/or Audio Submissions; IM Communications Standards : Any Submissions (including without limitation, text in any Forwarding E-Mail, video, photograph and/or audio recording) may not include telephone numbers, street addresses, last names, or other personally identifiable information about you or anyone else (other than provision of information regarding yourself in the Profile and/or your friends in the area to identify your Designated Friends, as defined in Section 2(i) below). A maximum of two (2) videos (each with a maximum length of no more than fifteen minutes in duration), may be uploaded by you to the TEST COMMON SITE, and a cumulative maximum of no more than five (5) files (e.g., video, photograph, audio recording or other image) may be uploaded to the TEST COMMON SITE; other limitations may be imposed from time to time at the sole discretion of Test Common Inc. In addition to the requirements set forth in Section 2(e)(I) , you agree that you will not use any Submissions and/or any text in any Forwarding E-Mail or IM Communication (as defined in Section 2(f) below), including without limitation, text in any the Forwarding E-Mail, any photograph, video and/or audio recordings, to post or communicate any item which:

    (A) is false and/or defamatory, inaccurate, libelous, abusive, vulgar, hateful, harassing or threatening, makes misrepresentations; is obscene, offensive, or contains disparaging remarks about other people or companies; endorses any form of hate or hate group; or is profane or pornographic; contains any nudity;

    (B) is sexually oriented, explicit or suggestive;

    (C) is unnecessarily violent or derogatory of any ethnic, racial, gender, religious, professional or age group;

    (D) promotes alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing); promotes any activities that may be construed as unsafe or dangerous; or promotes any particular political agenda or message;

    (E) advertises or promotes any brand or product of any kind other than Test Common Inc.;

    (F) contains any personal identification, such as license plate numbers, personal names, e-mail addresses or street addresses, or other indicia (such as names, likenesses, or voices) identifying any person, including, without limitation, celebrities and/or other public or private figures, living or dead, or is invasive of a person's privacy; contains look-alikes of celebrities or other public or private figures, living or dead;

    (G) contains copyrighted materials owned by others (including without limitation, photographs, sculptures, paintings, and other works of art or images published on or in websites, television, movies or other media); contains Trademarks (as defined in Section 7 below) or trade dress (such as distinctive packaging or building exteriors/interiors) owned by others;

    (H) appears to duplicate any other submitted materials and/or recordings;

    - communicates messages inconsistent with the positive images and/or good will to which we wish to associate for Test Common Inc.,

    - is otherwise violative of any law.

    You also agree not to submit any Submissions or Forwarding E-Mails for posting and/or uploading that are not original with you or are not owned by you. We reserve the right to monitor any posting and/or uploading, or not post or upload, or remove any posting and/or Uploads, that we determine is spam, off-topic, or violates this Agreement and any other code of conduct posted on this TEST COMMON SITE or is otherwise inappropriate as we determine in our sole discretion. Note, however, that we have no obligation to review the submitted Content and specifically disclaim any responsibility or liability for them.

    We reserve the right to reject any Profile, Submissions and/or Forwarding E-Mail, in our sole discretion, that we determine does not meet any of the criteria set forth above. Also, we reserve the absolute right NOT to accept any Profile, Submissions and/or Forwarding E-Mail for any reason, or no reason at all.

    Without in any way waiving any of the requirements under this Agreement (and/or releasing you from your obligations, representations, or warranties herein), we may elect, in our sole discretion, to post and/or upload Profiles, Submissions and/or Forwarding E-Mails that we believe do not violate the intent or purpose of this Agreement (e.g., incidental or insignificant uses of trademarks, logos, or copyrighted items).

    We may advise you via your identified e-mail address whether any of your Profile information, Submissions and/or Forwarding E-Mails have been accepted. We reserve the right not to advise you as to the reason why any of your Profile information, Submissions and/or Forwarding E-Mails have NOT been accepted.

    All Profile information, Submissions and Forwarding E-Mails become our physical property and will not be returned.

    (III) Representations : You warrant and represent that:

    (A) the names and e-mail addresses you identify or identified to us for yourself, your parent or legal guardian, and any Designated Friend are accurate, complete, and valid;

    (B) you are the sole and exclusive owner of the Submissions (including without limitation, any text, audio, photograph, image and/or video) and text of any Forwarding E-Mails, and all rights therein;

    (C) you have the full and exclusive right, power, and authority to provide the Profile information, Submissions (including without limitation, any text, blogs, messages, comments, videos, photographs and/or audio recordings) and Forwarding E-Mails, and to grant us the rights to the Profile information, Submissions and Forwarding E-Mails herein granted upon the terms and conditions set forth herein;

    (D) no part of the Submissions, or text of any Forwarding E-Mails, has previously been published;

    (E) no rights in the Submissions, or text of any Forwarding E-Mails, have been previously granted to any person, firm, corporation, or other entity, or otherwise exercised or exploited;

    (F) your Profile information, Submissions, IM Communications and Forwarding E-Mails are in keeping with our image and are not offensive or otherwise violate any part of this Agreement;

    (G) your Profile information, Submissions, IM Communications and Forwarding E-Mails do not defame or invade publicity rights or privacy of any person, living or deceased, or otherwise infringe upon any person's personal or property rights or any other third party rights;

    (H) if your Submissions, IM Communications and/or Forwarding E-Mails appear to endorse Test Common Inc. or any Test Common Inc. Entities (as defined in Section 7 below), and/or imply any association with any Test Common Inc. Entities or our business, you consent to such appearance of endorsement and/or association, and if a third party appears to endorse, or be associated with, Test Common Inc., Test Common Inc. Entities or our business, you have obtained the express written consent of such third party to such endorsement and/or association (and, if requested to do so, can produce such written consent in a form and manner acceptable to us); and

    (I) if any Submission, IM Communication and/or Forwarding E-Mail contains persons other than yourself or third party elements not owned by you, you have obtained express written consent to provide such Submission, IM Communication and/or Forwarding E-Mail and allow it to be used in the manner contemplated by this Agreement from each and every person depicted in the Submission, IM Communication and/or Forwarding E-Mail and each and every owner of any third party element, and, if requested to do so, can produce such written consent in a form and manner acceptable to us (and in particular, if any minor is depicted in any photograph, information and/or video, you have obtained the express written consent of the minor's parent or legal guardian to submit such photograph, information and/or video and allow it to be used in the manner contemplated in this Agreement).

    (F) IM Communications : This TEST COMMON SITE permits you to add to your Profile your instant message "buddy" name, chat profile forum name and/or other identifier of you so that others may Instant Message you (" IM Identifier "). The IM Identifier information shall be (i) viewable by Members you identify as your "favorite" in your Profile, or (ii) viewable by all visitors to the TEST COMMON SITE if you so elect during the registration process. Such election may be changed by you from time to time, but Test Common Inc. cannot guarantee how quickly your changes will be implemented. ACCORDINGLY, IF YOU PROVIDE THIS IM IDENTIFIER IN YOUR PROFILE THIRD PARTIES MAY CONTACT YOU DIRECTLY. We caution you against using your full name for your IM Identifier for privacy reasons.

    You can decide, in your sole discretion, whether or not to communicate with others using your IM Identifier. If you elect to communicate with any others, any communication (i.e., Instant Messaging) will be transmitted directly between the parties (and not through this TEST COMMON SITE) (collectively,"IM Communications") and will not be reviewed by us at all. As we have no control or access to any such IM Communications, you assume all risks associated with engaging in such IM Communications . You should, however, comply with the standards set forth in Section 2(e)(II) when participating in IM Communications.

    We do not perform any background checks on any Member as part of facilitating IM Communications, and cannot (and do not) warrant that any personal or other information you provide through IM Communication or in order to engage in IM Communications will not be used for fraudulent, criminal, or other illegal purposes by those using IM Identifiers. We urge you to use caution in providing any personal or sensitive information in IM Communications .

    Any opinions, statements, or other material expressed or transmitted through IM Communications are those of such parties expressing or transmitting them, and we do not endorse any such opinion, statement, or other material. You should be aware that any information included in IM Communications may be incorrect or misleading and it is your responsibility to take precautions when using any such information. Any decision or action taken by you on the basis of information or content provided in any IM Communication is at your sole discretion and risk.

    (g) Modifications, Interruptions or Discontinuation of Service : Test Common Inc. reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. Without limiting the generality of the foregoing, Test Common Inc. reserves the right to delete, add to or modify the Content for any reason at any time, and to delete (or block your access to) any portion of the Service in the event we reasonably determine that the Service, your use of the Service or any element used to create the Service, infringes on or violates, or could infringe on or violate, any third party right or any applicable laws or government regulations.

    (h) Third Party Products and Services : We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that TEST COMMON INC. SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES OR ON SUCH LINKED THIRD PARTY WEBSITES.

    (i) Refer a Friend Opportunities : One of the features available to registered users of the Service is the ability to send an e-mail to their friends. If you wish to take advantage of this feature, you must provide a valid, active U.S.-based e-mail address for each person you wish to send such e-mail (" Designated Friend "). You may also have the option of composing a message to be included in such e-mail. You may not withdraw the contact information you provide for a Designated Friend once it has been submitted. NOTE: Designated Friends must be permanent, legal residents of the continental United States, at least 16 years old, and be able to register for the Service or otherwise use the Service; provided , however , if the Designated Friend is YOUNGER THAN 18 years of age (or YOUNGER THAN 19 years of age and a resident of Alabama or Nebraska, or YOUNGER THAN 21 years of age and a resident of Mississippi) at the earlier of viewing or time of registration on this TEST COMMON SITE, SUCH DESIGNATED FRIEND MUST HAVE OBTAINED THE CONSENT OF HIS/HER PARENT OR LEGAL GUARDIAN TO VIEW AND USE THIS Test Common SITE, AND OBTAINED THE AGREEMENT OF HIS/HER PARENT OR LEGAL GUARDIAN TO THESE TERMS . By submitting the names and e-mail addresses of Designated Friends, you grant us and our designees permission to notify and/or communicate with such Designated Friends using the e-mail addresses that you provided. If you submit any e-mail address of any Designated Friend, you warrant and represent that you have obtained the express consent of each such Designated Friend to submit such e-mail address and have us and our designees communicate with such individual via the submitted e-mail address. You may only identify Designated Friends with whom you have a personal relationship. We will not be responsible for validating the contact information you provide. We may elect NOT to communicate with any identified e-mail address if it appears to be on any of our "do not e-mail" lists and/or the FCC wireless domain name list. We reserve the right to limit the number of Designated Friends you can submit, and we reserve the right to limit the number of transmissions to any particular Designated Friend from time to time. In addition, we reserve the right to withhold sending your e-mail to any Designated Friend if (i) the e-mail address provided by you is incorrect or not valid, (ii) we determine in our sole discretion that any message you included in your e-mail is inappropriate for any reason, or (iii) we determine in our sole discretion that sending the e-mail to such individual might be harmful to us, the TEST COMMON SITE, the Service or any user for any reason. We specifically disclaim any liability for exercising such right.

    We may, at our discretion, send you a confirmation using any means available through the Service, including e-mail or other forms of messaging, to inform you that a Designated Friend has registered for the Service. If you misuse this refer-a-friend feature or otherwise engage in improper behavior with respect to such feature, as we determine in our sole discretion, we reserve the right to discontinue the Service to you.

    (j) No Damage to Service : You may not access or use the TEST COMMON SITE in any way that could or is intended to damage or impair the operation of the TEST COMMON SITE, or any Content on the TEST COMMON SITE, or any server or network underlying the TEST COMMON SITE, or interferes with anyone else's use and enjoyment of the TEST COMMON SITE.

    (k) Additional Features : We may from time to time add additional features to the Service, such as a contest, sweepstakes or other promotional program, and any such promotional programs shall be subject to additional terms and conditions which shall be posted (either on the TEST COMMON SITE or in a separate section) at the time such programs become available and shall be deemed incorporated into, and subject to, these terms and conditions of Service.

    3. GRANT OF RIGHTS

    We may elect, in our sole discretion, to post your name, other Profile information and your Submissions on the TEST COMMON SITE, make it available to other visitors, and use it as part of other promotions on or related to the TEST COMMON SITE or the Service.

    In addition, we shall have the right, but not the obligation, to use your name, likeness, biography and other information about you (including any information that you post and/or otherwise select), in connection with your use of the Service in any media now or hereafter known, throughout the world, in connection with the TEST COMMON SITE, the Service, and other advertising, promotion and other activities of or related to Test Common Inc., its parent, subsidiaries or affiliates, or their respective distributors, dealers, dealer associations, products or services without any payment or other consideration of any kind, or permission or notification, to you or any third party.

    You grant to us and our designees an exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exploit the Submissions and any person's property (physical, personal, and indicia) contained therein, (and any portion of the Profiles subject to the terms of Sections 2(c) and 2(f) above) in any media now or hereafter known, without any payment or other consideration of any kind, or permission or notification, to you or any third party. We reserve all rights, including without limitation, the right to reproduce, record, alter, amend, edit, publish, publicly perform, use, merchandise, license, sublicense, adapt, and stream the Submissions (and any portion of the Profiles subject to the terms of Sections 2(c) and 2(f) above) in any and all media now or hereafter known, including but not limited to, the Internet and outdoor billboards, throughout the world, related to the Test Common Inc. Entities, their respective distributors, and any other promotions sponsored by us.

    You waive any claim of alteration, optical illusion, or faulty mechanical or electronic reproduction of any Submissions and/or Profile information (for example, any video or photograph(s)), including without limitation, any claim due to any variation of the color, tone, clarity, cropping, or other appearance of any Submissions.

    You understand and agree that no confidential or fiduciary relationship is established between you and us arising from downloading any of the Mobile and/or PC Downloads (including without limitation, any of the Wallpaper or Other Data), uploading any of the Uploads (including without limitation, any of the Submissions), creating any of the Profiles, facilitating IM Communications, and/or using the Forwarding E-Mail feature through the Service.

    If you desire any Submissions and/or Profile information to be removed from this TEST COMMON SITE , please contact us at webmaster@testcommon.com . Photograph, text, audio and/or video uploads and removals shall NOT occur more often than once per day.

    4. Privacy

    See Test Common Inc. privacy policy, available here , for an explanation of our collection and use of personal information under this Agreement, but see also Sections 2(c) , 2(f) and 3 hereof.

    5. Indemnification

    You agree to defend, indemnify and hold harmless Test Common Inc. and its parent, subsidiaries and affiliates, their respective distributors, dealers, dealer associations and advertising and promotions agencies, together with their respective employees, agents, directors, officers and shareholders, successors and assigns (collectively, " Test Common Inc. Parties "), from and against all the liabilities, claims, damages, costs and expenses (including without limitation, reasonable attorneys' fees and costs) arising out of your use of the TEST COMMON SITE, the Service or any Content (including without limitation, any of your Profile information, Submissions, IM Communications and/or Forwarding E-Mails), your breach or alleged breach of this Agreement, or your breach or alleged violation of the copyright, trademark, proprietary or other rights of third parties.

    6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES AND RELEASE OF LIABILITY

    YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE TEST COMMON SITE, THE SERVICE OR ANY CONTENT (AS WELL AS PARTICIPATION IN ANY IM COMMUNICATIONS AND/OR FORWARDING E-MAIL) IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER OR LOSS OF DATA THAT MAY RESULT FROM SUCH USE AND/OR PARTICIPATION. YOU AGREE THAT THE SERVICE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS , and the entire risk as to satisfactory quality, performance, accuracy, and effort is with you. We assume no liability or responsibility for any errors or omissions in the Content of the TEST COMMON SITE

    . Any opinions or statements or other material expressed, transmitted, or posted on the TEST COMMON SITE by users are those of such parties, and we do not endorse any such opinion, statement, or other material. Any visitor who feels that an image, text, photograph, video, or other posting is objectionable is encouraged to contact us immediately at webmaster@testcommon.com . Although we do not typically review or monitor all postings on the TEST COMMON SITE (and have no obligation to do so), we have the ability to remove objectionable Content and we will make every effort to do so, within a reasonable time frame, if we determine in our sole discretion that removal is necessary or appropriate.

    YOU ACKNOWLEDGE AND AGREE THAT TEST COMMON INC. PARTIES SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE TEST COMMON SITE, THE SERVICE OR ANY FEATURE OR CONTENT OF THE TEST COMMON SITE OR THE SERVICE, AND/OR PARTICIPATION IN ANY IM COMMUNICATIONS AND/OR FORWARDING E-MAIL. TEST COMMON INC. MAKES NO WARRANTIES THAT THE TEST COMMON SITE, THE SERVICE OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE TEST COMMON SITE, THE SERVICE (OR ANY DOWNLOADS OR OTHER FEATURES THEREOF) OR THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, NONINFRINGING OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE TEST COMMON SITE OR THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. We assume no liability or responsibility for any errors or omissions in the content of THE TEST COMMON SITE OR THE SERVICE OR ANY PRODUCT OR SERVICE PROVIDED BY A THIRD PARTY IN CONNECTION WITH THE SERVICE OR ANY IM COMMUNICATIONS OR FORWARDING E-MAIL. IN PARTICULAR, IF THERE ARE ANY CONTESTS ON THIS TEST COMMON SITE, ANY PRIZES FOR THE CONTEST ARE PROVIDED BY OUR PRIZE SUPPLIER AND MAY NOT BE INDEPENDENTLY VERIFIED BY US. ANY DECISION OR ACTION TAKEN BY YOU ON THE BASIS OF INFORMATION OR CONTENT IS AT YOUR SOLE DISCRETION AND RISK. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

    EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, TEST COMMON INC. PARTIES AND THEIR LICENSORS AND CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICE OR CONTENT, INCLUDING WITHOUT LIMITATION THE SUPPLIERS OF ANY CONTEST PRIZES) (COLLECTIVELY, " RELEASED PARTIES ") SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE ASSUME NO RESPONSIBILITY, AND SPECIFICALLY DISCLAIM LIABILITY, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES WHICH MAY AFFECT YOUR COMPUTER EQUIPMENT, MOBILE DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE TEST COMMON SITE, THE SERVICE OR ANY CONTENT. WE CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE TEST COMMON SITE OR THE SERVICE. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.

    YOU HEREBY RELEASE AND DISCHARGE EACH OF THE RELEASED PARTIES FROM AND AGAINST ANY CLAIMS, DAMAGES, EXPENSES AND LIABILITY ARISING FROM OR RELATED TO ANY INJURIES, DAMAGES OR LOSSES TO ANY PERSON (INCLUDING DEATH) OR PROPERTY OF ANY KIND RESULTING IN WHOLE OR PART, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE TEST COMMON SITE, THE SERVICE OR ANY CONTENT, ANY IM COMMUNICATIONS AND/OR FORWARDING E-MAILS, OR THE USE BY TEST COMMON INC. OR ITS DESIGNEES OF ANY RIGHTS GRANTED BY YOU.

    7. Intellectual Property Rights

    Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in or practiced in connection with the TEST COMMON SITE, the Service and the Content (collectively, " Test Common Inc. Intellectual Property Rights ") are owned by Test Common Inc., its parent, subsidiaries or affiliates (collectively, " Test Common Inc. Entities ") or its licensors, and you agree to make no claim of interest in or ownership of any such Test Common Inc. Intellectual Property Rights. You acknowledge that no title to the Test Common Inc. Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service or the Content other than the rights expressly granted in this Agreement. Without limiting the generality of the foregoing, you acknowledge and agree that t he trademarks, logos and service marks, whether registered or unregistered (collectively, the " Trademarks ") used on the TEST COMMON SITE are Trademarks of Test Common Inc. Entities or third parties. Nothing contained on the TEST COMMON SITE or obtained through the Service (including any Content) should be construed as granting by implication, estoppel or otherwise, any license or right to use any such Trademarks without our written consent and/or the consent of such third party that owns the Trademarks. Any use of the Trademarks on the TEST COMMON SITE is prohibited.

    8. COPYRIGHT INFRINGEMENT AND COPYRIGHT AGENT

    We respect the intellectual property of others, and we ask our users to do the same. If you are the owner of a United States copyright and you believe that your work has been copied on the TEST COMMON SITE in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information:

    - a physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

    - a description of the copyrighted work or other intellectual property that you claim has been infringed;

    - a description of where the material that you claim is infringing is located on the TEST COMMON SITE;

    - your address, telephone number, and e-mail address;

    - 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; and

    - a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

    9. TERMINATION

    We reserve the right to terminate this Agreement and your access to the TEST COMMON SITE or the Service immediately, without notice or any liability to you, if you fail to comply with any term or condition of this Agreement.

    10. DISPUTES

    You agree that (a) any and all disputes, claims and causes of action arising out of, or connected with, the TEST COMMON SITE or the Service (including without limitation, any alleged violation of this Agreement, any controversy relating to the arbitrability of any dispute, or any claim that this Agreement (or any part thereof) is invalid, illegal or otherwise voidable (or void)) shall be resolved individually, without resort to any form of class action, and exclusively by arbitration to be held solely in Denver, Colorado under the auspices of the American Arbitration Association and pursuant to its Commercial Dispute Resolution Rules and Procedures; (b) any and all claims, judgments, liabilities and/or awards shall be limited to actual out-of-pocket costs incurred, including costs associated with your use of the TEST COMMON SITE or the Service, or otherwise accessing the TEST COMMON SITE or the Service, but in no event attorneys' fees; and (c) under no circumstances will you be permitted to obtain awards for, and you hereby waive, all rights to claim, punitive, special, incidental and/or consequential damages and any other damages, other than out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. This arbitration provision shall be deemed to be self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said failure to appear. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the TEST COMMON SITE or the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the TEST COMMON SITE, the Service or any content or other material used or displayed on the TEST COMMON SITE or the Service.

    All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, your rights and obligations, or our rights and obligations in connection with the TEST COMMON SITE or the Service, shall be governed by, and construed in accordance with, the laws of the State of Colorado, U.S.A., without giving effect to any choice of law or conflict of law rules (whether of the State of Colorado or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of Colorado.

    11. Miscellaneous

    (a) Notices And Announcements : Except as expressly provided otherwise herein, all notices to Test Common Inc. shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:

    Test Common Inc.

    PMB 175

    7476 E. 29th Avenue

    Denver, CO 80238

    (b) Severability : This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

    (c) Entire Agreement : You agree that this Agreement constitutes the entire, complete and exclusive agreement between you (including if you are a minor, your parent(s) and/or legal guardian(s)) and us regarding the TEST COMMON SITE and the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement; PROVIDED , HOWEVER , THAT THE TERMS OF THIS AGREEMENT SUPPLEMENT, AND DO NOT SUPERSEDE, THE TERMS OF ANY OFFICIAL CONTEST RULES ON THIS TEST COMMON SITE. To the extent there is any conflict between the terms of this Agreement and the Official Contest Rules of any contest on this TEST COMMON SITE, the terms of the Official Contest Rules control.

    (d) Assignment And Resale : Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Service or any portion thereof.

    (e) Waiver : No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Test Common Inc. The remedies of Test Common Inc. under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. Any failure by us, at any time or from time to time, to enforce any of our rights under this Agreement shall not constitute a waiver of such right.

    (f) Headings : The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

    (g) Survival : In the event this Agreement terminates as provided herein, Sections 2(e) , 3 , 5 , 6 , 7 , 10 and 11 of this Agreement shall survive such expiration or termination.

    I ACCEPT THE TERMS AND CONDITIONS , and, if a minor, I confirm that my parent or legal guardian agrees to my use of this Site, and agrees to these terms and conditions.123

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