Terms and Conditions | Cushing

Terms and Conditions

Last Updated: November 2010

Welcome to Cushing! We hope you enjoy your visit, and find that using our service is productive and easy.

Before using the Cushing website (herein referred to as “we”, “us”, or “Cushing”), please read the following Terms of Use (“Terms”) carefully. These Terms govern your access to and use of the website and services owned and/or operated by Cushing (collectively, the “Service”). Your access to and use of the Service are expressly conditioned on your acceptance of and compliance with these Terms. Your use of the Service constitutes your agreement to these Terms. If you do not agree to these Terms, please do not use the Service. Note that any violation of these Terms may result in termination of your ability to access and use the Service.

The Terms also include posted terms and conditions applicable to specific services and/or features, all of which are hereby incorporated by reference. Such additional terms and conditions (“Additional Terms”) will be posted for viewing in conjunction with the applicable feature or service. In the event of any conflict between the terms and conditions of these Terms (other than Section 11, 12, and 13 of these Terms) and the terms and conditions of the Additional Terms, the Additional Terms shall control; with respect to conflicts between the terms and conditions of the Additional Terms and Sections 11, 12, and 13 of these Terms, Sections 11, 12, and 13 of these Terms shall control.

We reserve the right at any time to change all or any part of these Terms; change the Service, including by eliminating or discontinuing any content on or feature of the Service; and change any fees or charges for use of the Service. Any changes we make will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the Service or by electronic mail. Your continued use of the Service after such notice will be deemed acceptance of such changes. You can determine when these Terms were last revised by referring to the “LAST UPDATED” legend at the top of these Terms. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms. Upon our request, you agree to sign a non-electronic version of these Terms. You agree that we shall not be liable to you or to any third party for any elimination or discontinuation of any content on or feature of the Service; or any change in any fees or charges for use of the Service.

  1. Registration

When and if you register to use the Service, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate your access to and use of the Service.

  1. Your Use of the Service

Subject to and conditioned upon your compliance with these Terms, and solely for so long as you are permitted by Cushing to access to Service, we grant to you a non-exclusive, non-transferable, nonsublicensable, limited right and license to access the Service, including any images, text, graphics, videos, visuals, sounds, data, files, links and other materials incorporated into the Service (other than your Submissions), solely as made available by us, solely as necessary to access the Service and solely for your own personal, non-commercial, home purposes, provided that you keep intact all copyright and other proprietary notices. You acknowledge and agree that certain features of the Service may include advertisements and that such advertisements are a necessary part of the Service. The Service, including all such materials and all intellectual property rights therein, remain the property of Cushing or its licensors or suppliers. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit, perform, display or create derivative works of any portion of the Service without the written consent of Cushing. Nothing herein grants any rights to commercially exploit any portion of the Service or any content therein. All rights not expressly granted hereunder are expressly reserved.

While using the Service you agree to comply with all applicable laws, rules and regulations. In addition, we expect users of the Service to respect the rights and dignity of others. Your use of the Service is conditioned in part on your compliance with the rules of conduct set forth in this section; any failure to comply may result in termination of your access to the Service pursuant to Section 9 below. While using the Service, you agree not to:

  • Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity;
  • Impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use any fraudulent, misleading or inaccurate email address or other contact information;
  • Restrict or inhibit any other user from using the Service, including, without limitation, by means of “hacking” or defacing any portion of the Service;
  • Violate any applicable laws or regulations;
  • Express or imply that any statements you make are endorsed by us, without our prior written consent;
  • Upload to, transmit through, or display on the Service (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
  • Use the Service to harm minors in any way, including, but not limited to, by uploading content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
  • Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
  • Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Service;
  • Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Service;
  • “Frame” or “mirror” any portion of the Service, or link to any page of or material on the Service other than the URL located at http://www.Cushing.com/ or the URLs provided by us to you for such purposes as part of the Service, without our prior written authorization;
  • Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service; or

We may suspend and/or terminate your access to and use of the Service and/or any features made available through the Service immediately if you fail to comply with the above rules or otherwise fail to comply with these Terms.

  1. Your Submissions

In the event that you post or upload to the Service, or otherwise submit to or through Cushing as part of your use of the Service, any materials including, without limitation, photographs and other images, text, graphics, videos, visuals, sounds, data, files, links and other materials (collectively, “Submissions”), you will retain ownership of such Submissions, and you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) such Submissions, solely in connection with the Service (including without limitation for purposes of promoting the Service). Please note that, while you retain ownership of your Submissions, any template or layout in which you arrange or organize such Submissions through tools and features made available through Cushing are not proprietary to you, and can be used by Cushing and others for any purposes. You acknowledge and agree that you have no rights in any such template and/or layout, and such template or layout shall be the sole and exclusive property of Cushing.

You represent, warrant and covenant that (i) you own or otherwise possess all necessary rights with respect to your Submissions, and (ii) your Submissions do not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.

Cushing is not responsible for, and will have no liability for, the removal or non-removal of any Submissions from the Service. We recommend you keep back-up copies of your Submissions on your hard drive or other personal system, as the Service is not intended to be used as a back-up solution for storing your Submissions.

  1. Making Purchases

If you wish to purchase any products or services through the Service, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order.

Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on the Service. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Service at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.

Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.

  1. Copyright Issues

Cushing is committed to protecting copyrights and expects users of the Service to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.

  1. Web Addresses (URLs)

As part of the Service’s online image share feature, we may provide you with access to and use of certain personalized pages on the Service and the corresponding web addresses (URLs) chosen by you. However, we do not guarantee the availability of any particular web page or URL, and we reserve the right, at any time and in our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL. In such cases, we may, at our option, provide you with another web page and URL.

  1. Term and Termination

These Terms shall remain effective until terminated as set forth herein. We may, in our sole discretion, immediately terminate these Terms, and/or your access to and use of the Service or any portion thereof, at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon termination of these Terms, your right to access and/or use the Service will immediately cease. You agree that any termination of your access to or use of the Service may be effected without prior notice, and that we may immediately deactivate or delete all related information and files associated with it (including all Submissions), and/or bar any further access to such information or files. You agree that we shall not be liable to you or any third party for any termination of your access to the Service or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Except for the license to access and use the Service granted to you in Section 2, the rights and obligations of the parties as set forth herein will survive termination.

  1. Third-Party Websites, Software and Services

The Service may direct you to websites, software or services owned or operated by third parties (“Third Party Properties”). We have not reviewed all of the Third Party Properties to which you may be directed and we have no control over such Third Party Properties. We have no control over and are not responsible for (a) the content and operation of such Third Party Properties, or (b) the privacy or other practices of such Third Party Properties. The fact that the Service directs you to such Third Party Properties does not indicate any approval or endorsement of any Third Party Properties. We direct you to such Third Party Properties only as a convenience. You are responsible for the costs associated with such Third Party Properties, including any applicable license fees and service charges. Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any such Third Party Properties.

Other web sites may provide links to the Service with or without our authorization. We do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Service, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.

YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

We shall have the right, at any time and in our sole discretion, to block links to the Service through technological or other means without prior notice.

  1. Promotions

In addition to the terms and conditions of these Terms, any contests, sweepstakes, surveys, games or similar promotions (collectively, “Promotions”) made available through the Site may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. We urge you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to these Terms, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with these Terms, the terms and conditions of such rules shall control.

  1. S. Government Restricted Rights

If you are an agency or instrumentality of the United States Government, any software and documentation included in the Service are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of such software and documentation are governed by these Terms.

  1. Indemnification

You agree to indemnify, defend and hold us, our affiliates, distributors, partners, licensors, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of these Terms, including any violation of the rules set forth in Section 2 above; (b) your Submissions; and/or (c) your activities in connection with the Service (including, without limitation, any and all purchases).

  1. Disclaimer of Warranties

THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ALL MATERIALS INCORPORATED THEREIN AND ALL FEATURES AND FUNCTIONALITY OF THE SERVICE, IS PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CUSHING AND ITS AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS AND SPONSORS, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS AND OTHER REPRESENTATIVES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you. WE, OUR AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS AND SPONSORS, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS AND OTHER REPRESENTATIVES DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, THE SERVER(S) ON WHICH THE SERVICE IS OFFERED OR ANY SOFTWARE INCORPORATED INTO THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF CUSHING AND/OR ITS AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS AND/OR SPONSORS, AND/OR OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS AND OTHER REPRESENTATIVES, WHETHER MADE ON OR THROUGH THE SERVICE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.

  1. Limitation of Liability

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER CUSHING NOR ANY OF OUR AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE (INCLUDING, BUT NOT LIMITED TO, ALL MATERIALS INCORPORATED THEREIN AND ALL FEATURES AND FUNCTIONALITY OF THE SERVICE). YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE SOLE, EXCLUSIVE AND MAXIMUM LIABILITY OF CUSHING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE $100. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

  1. Intellectual Property Notices

All trademarks and service marks on the Service not owned by us are the property of their respective owners. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

  1. Miscellaneous

These Terms are governed by and construed in accordance with the laws of the State of Illinois, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Coo, Illinois, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible, or, if incapable of such enforcement, shall be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances shall remain in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicenseable by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

If you have any questions or comments regarding these Terms, please contact:accounting@cushingco.com.