By using and/or visiting gajitz.com, including all Content (as defined below) available through gajitz.com and any associated content such as e-mail feeds and RSS feeds (collectively, the "Website," which is operated by Misnamed Media LLC (together with its parent, subsidiary and affiliated entities, "Misnamed Media"), you signify your assent to these terms and conditions (the "Terms of Service").
We reserve the right to modify or discontinue the Website (or any portion of the Website), temporarily or permanently, with or without notice to you, and are not obligated to support or update the Website. You agree that Misnamed Media shall not be liable to you or any third party in the event that we exercise our right to modify or discontinue the Website (or any portion of the Website). Unless explicitly stated otherwise, any new features that augment or enhance the current Website shall be subject to these Terms of Service.
These Terms of Service were last revised on December 30, 2010. We may change these Terms of Service at any time. Please review the Terms of Service each time you visit the Website. BY USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THE TERMS OF SERVICE.
a.These Terms of Service apply to all users of the Website, including users who are also contributors of content, information, and other materials or services on the Website. The Website may contain links to third party websites that are not owned or controlled by Misnamed Media. Misnamed Media has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites, and you access and use these websites solely at your own risk. These links are provided for your reference and convenience only, and do not necessarily imply any endorsement, sponsorship or recommendation of the material on these third-party websites or any association with their operators. In addition, Misnamed Media will not and cannot control or edit the content of any third-party site. By using the Website, you expressly relieve Misnamed Media from any and all liability arising from your use of any third-party website and from any loss or damage of any sort you may incur from dealing with any third party. Accordingly, we encourage you to be aware when you leave the Website and to read the terms and conditions of each other website that you visit.
b.If you do not have another agreement with Misnamed Media, you may link to the home page (and no other page) of the Website from your website, subject to the following: (1) you may not frame the Website or any portion of the Website; (2) you will not override or hinder the functionality of an end-user's Web browser's "back" function; (3) the link must be identified using a plain text rendering of the Misnamed Media or gajitz name and not any Misnamed Media or gajitz logo; (4) you may not use the link in any way that suggests that Misnamed Media is associated with or endorses you or your website, without Misnamed Media's prior written consent; (5) the link may not appear on any website that a reasonable person may consider obscene, defamatory, harassing, offensive or malicious, and may not be presented in any way that disparages Misnamed Media or damages its reputation and goodwill; and (6) we may terminate your right to link to the Website at any time for any reason or no reason.
a.Misnamed Media hereby grants you permission to use the Website as set forth in these Terms of Service, provided that: (i) your use of the Website as permitted is solely for your personal, noncommercial use; (ii) you will not copy, download or distribute any part of the Website in any form or medium without Misnamed Media's prior written authorization, except as permitted in Section 6 below; (iii) you will not alter, modify, or make derivative works from any part of the Website without Misnamed Media's prior written authorization, except as permitted in Section 6 below; and (iv) you will otherwise comply with these Terms of Service.
b.Misnamed Media may, in appropriate circumstances and at its sole discretion, disable or terminate the accounts of users who violate these Terms of Service, including, but not limited to, the accounts of users who repeatedly post User Submissions that infringe copyrights, trademarks, rights of publicity, or other intellectual property rights.
a.In your use of the Website, you shall not:
use web crawlers, web robots, web scutters, ants, automatic indexers, bots, worms, and other such devices in connection with the Website; provided, however, that general purpose internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Website are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent;
post, transmit or submit any confidential, false, misleading, unlawful, infringing, threatening, abusive, harassing, libelous, defamatory, discriminatory, obscene, inflammatory, scandalous, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or would otherwise violate the law;
use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party's use of the Website;
obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Website;
impersonate or misrepresent your affiliation with someone else;
remove, modify, disable, block, obscure or otherwise impair any advertising in connection with the Website;
harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications;
solicit other users to join, become members of, or contribute money to any online service or other organization;
post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to the Website;
or use the Website to advertise or perform any commercial solicitation.
b.Misnamed Media will fully cooperate with any law enforcement authorities or court order requesting or directing Misnamed Media to disclose the identity of anyone violating these Terms of Service.
c.Misnamed Media believes in children's online safety and does not wish to receive information regarding children under 13 years old. Therefore, you may not post or transmit any personally-identifiable information of a child under 13 years old or information sufficient to locate such a child on or through the Website.
a.Everything you see, hear, or otherwise experience on this Website, except for content used pursuant to fair use, including but not limited to the videos, text, software, photographs, scripts, graphics, interactive features and the like (collectively, "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Misnamed Media, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Misnamed Media owns the copyright in the selection, coordination, arrangement and enhancement of the Content. Any unauthorized use of any materials on this Website may violate copyright, trademark, and other laws. MISNAMED MEDIA and GAJITZ are trademarks of Misnamed Media.
b.Content on the Website is provided to you AS IS for your information and personal use only. For your personal and non-commercial use, you may view, copy, and print pages of the Website. You may also forward e-mail feeds as-is to others on an occasional basis if an article interests you. Otherwise, the Website may not be copied, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Misnamed Media reserves all rights not expressly granted in and to the Website and the Content. You agree not to use, copy, download, or distribute any of the Content other than expressly permitted herein, including any use, copying, downloading, making derivative works from, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. You may not incorporate the Content into, or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by Misnamed Media in writing. You may not create, recreate, advertise or distribute an index of a significant portion of the Content unless authorized by Misnamed Media. You may not build a business using the Content, whether or not for profit. If you copy or print pages of the Content for personal, non-commercial use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the Content therein.
a.The Website may now or in the future permit the submission of text or other communications submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Misnamed Media does not guarantee any confidentiality with respect to any submissions.
b.You shall be solely responsible for your own User Submissions (including text, other communications, or graphics submitted by you and other users and the consequences of posting or publishing them). You retain all of your ownership rights in your User Submission. However, by submitting the User Submissions to Misnamed Media, you hereby grant Misnamed Media and its successors and assigns a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, publish, broadcast, perform, make, use, import, offer to sell, sell, and otherwise transfer all copyrights, inventions, and other intellectual property rights in the User Submissions in connection with the Website and Misnamed Media's (and its successor's and assign's) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any form and media formats and through any media channels. You also hereby grant each user of the Website a worldwide, non-exclusive, royalty-free license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you to users of the Website terminates once you remove or delete a User Submission from the Website.
c.In connection with User Submissions, you represent and warrant that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Misnamed Media all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Misnamed Media or any third party; and (iii) submit material that is unlawful, violates any law, or is otherwise inappropriate. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your posting User Submissions. Misnamed Media does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Misnamed Media expressly disclaims any and all liability in connection with User Submissions. Misnamed Media does not permit copyright infringing activities, infringement of rights of publicity, or infringement of other intellectual property rights on its Website, and Misnamed Media will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's rights. (See Section 9 below). Misnamed Media reserves the right to remove Content and User Submissions without prior notice and for any reason. Misnamed Media also reserves sole discretion to decide whether Content or a User Submission is appropriate and complies with these Terms of Service.
d.You understand that when using the Website, you will be exposed to User Submissions from a variety of sources, and that Misnamed Media is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Misnamed Media with respect thereto, and agree to indemnify and hold Misnamed Media, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Website.
a.Authors contributing to the Website agree to follow the law of fair use when writing articles for the Website to ensure that no copyright is violated in the content creation and publication process. If you have a question or concern about a particular use, please see our policy below and contact us if the issue is not addressed in the subsequent text of this Section. It is the policy of Misnamed Media to remove any images at the request of the copyright holder or their authorized agent as a courtesy. We also adhere to the notice and takedown provisions of the Digital Millennium Copyright Act. All images are hosted locally so as to avoid burdening the servers of other websites. In-line linking is also optional upon written request by the verified copyright holder.
b.Four Core Doctrines of Fair Use as Applied to Misnamed Media
1.Purpose and Character of the Use
In the case quoted below, it was determined by the courts that reduced-sized image reproductions of copyrighted images constituted fair use because these copies were reduced in size, transformed through the addition of textual material and served to enhance reader understanding through their use. Likewise, the Website uses smaller images that conform to industry standards for size (at or below the size of typical editorial publications). The addition of original text makes such images also part of a transformative editorial work that conveys a unique new message.
In Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-10 (2d Cir. 2006), the court stated that the "display [of the Grateful Dead posters in the book] enhances the reader's understanding of the biographical text." Also, the publisher "significantly reduced the size of the reproductions [of the posters and] used the minimal image size necessary to accomplish its transformative purpose." Id. at 611. Finally, the publisher "minimized the expressive value of the reproduced images by combining them with . . . textual material."
2.Nature of the Copyrighted Work
Although the copyright status of each image used on the Website varies, all images are either (a) provided to the Website with express permission to reprint and publish, or (b) already available for freely accessible public viewing on the Internet. In either scenario, the right of first expression of the original copyrighted work is retained by its copyright owner.
3.Amount and Sustainability of the Work That is Use
Depending upon the content in question, all or part of a particular original work may be used in the creation of new editorials on the Website. If an entire image is the subject of discussion, commentary or critique, clearly use of the whole image is necessary for editorial purposes. When a portion of an image will suffice for the purpose of an article, authors are required to use that portion alone. In either case, authors are required to use lower resolutions and smaller sizes of images, reducing their substantiality to the smallest size necessary to accomplish the goal of transformative use. Images are locally hosted on the publications' own databases so as to respect bandwidth resources.
4.Effect on the Market for the Original Work
Authors cite and link to image and other content sources to direct readers toward available full-scale original works. Since new content on the Website represents a transformative departure from any original image or other material used in its creation, the market for the original work will not be negatively impacted. Critique, commentary and editorial coverage, if anything, can and do create positive exposure for original works.
c.Misnamed Media uses images and other content for editorial purposes and in a transformative fashion, neither charging for access nor profiting from any resale. All images used are publicly viewable at the same (or larger) size elsewhere on the internet, freely accessible to the public, are used with express permission of the copyright holder, or constitute images for which a source of ownership cannot be located after a reasonably diligent investigation has been conducted. Lower resolutions and, where applicable, smaller sizes are used to reduce the amount and substantiality of use. Finally, a primary goal of this network is to promote the works and careers of creators and innovators - Misnamed Media strives to add value to original endeavors through editorial coverage, critique and commentary as well as citations and links.
If you are an intellectual property owner or an agent thereof and believe that either (1) any Content on the Website or (2) any material or activity contained on an online location to which Misnamed Media has referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
a.a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b.identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Website are covered by a single notification, a representative list of such works on the Website;
c.identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
d.information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address;
e.a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f.a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification pursuant to the DMCA should be submitted to:
Kurt Kohlstedt, Misnamed Media LLC, 2260 East Bidwell St #2002, Folsom CA 95630
Telephone: (+1) 408.647.6263 - Fax: (+1) 408.516.8007
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. E-mails or notices sent to Misnamed Media without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
a.Misnamed Media responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
b.Please be aware that celebrities, and sometimes others, have a "right of publicity," which means that they have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Website and you don't have the celebrity's permission.
If you are a trademark owner or a celebrity and you believe your rights have been infringed on Misnamed Media, please submit a notification of infringement to our agent listed in Section 9 above.
c.To submit a notification, you must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.
d.When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office. Please also provide the location on gajitz.com where you believe the infringement is occurring.
Misnamed Media takes no responsibility for advertisements or any third party material posted on Misnamed Media, nor does it take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers found while using the Website are between you and the advertiser, and you agree that Misnamed Media is not liable for any loss or claim that you may have against an advertiser.
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MISNAMED MEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF AND ANY SERVICE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, AND NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, MISNAMED MEDIA DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE WEBSITE OR ON ANY WEBSITES LINKED TO THIS WEBSITE IS ACCURATE, COMPLETE OR CURRENT OR THAT THE WEBSITE OR ANY SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR. MISNAMED MEDIA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE INCLUDING ANY SERVICE, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
IN NO EVENT SHALL MISNAMED MEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR YOUR BUSINESS TRANSACTIONS WITH ANY ADVERTISERS WHEREIN SUCH CONTENT OR ADVERTISEMENT IS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MISNAMED MEDIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Website is controlled and offered by Misnamed Media from its facilities in the United States of America. Misnamed Media makes no representations that the Website is appropriate or available for use in all jurisdictions. Those who access or use the Website do so at their own volition and are responsible for compliance with local and all other applicable laws and regulations.
You agree to indemnify, defend and hold harmless Misnamed Media, its officers, directors, employees, agents, affiliates, shareholders, licensors and suppliers from and against any claims, losses, obligations, demands, liabilities, expenses, damages, costs, debt, and attorney's fees resulting from (i) your use of, access to, or misuse of the Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that one of your User Submissions caused damage to a third party; (v) any activity related to your Internet account (including negligent or wrongful conduct) by you or any other person accessing the Website using your Internet account; or (vi) any transaction you conduct as a result of the contact facilitated by the Website.
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Website.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Misnamed Media without restriction and without notice to you.
Misnamed Media reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. You agree that Misnamed Media shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website.
Software and the transmission of applicable technical data, if any, in connection with the Website are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
You agree that: (i) the Website shall be deemed solely based in Minnesota; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Misnamed Media, either specific or general, in jurisdictions other than Minnesota. These Terms of Service shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. Any claim or dispute between you and Misnamed Media or its officers, directors, employees, agents, affiliates, shareholders, licensors and suppliers that arises in whole or in part from the Website shall be decided exclusively by a court of competent jurisdiction located in Hennepin County, Minnesota. You further agree and consent to the exercise of personal jurisdiction in these courts in connection with any dispute with Misnamed Media or its officers, directors, employees, agents, affiliates, shareholders, licensors and suppliers. These Terms of Service and any other legal notices published by Misnamed Media on the Website, shall constitute the entire agreement between you and Misnamed Media concerning the Website. If any provision of these Terms of Service is deemed invalid, illegal, or unenforceable by a court of competent jurisdiction, the invalidity, illegality, or unenforceability of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Misnamed Media's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Misnamed Media reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms.
If you have questions, please contact Misnamed Media by using our contact form or at 2260 East Bidwell St #2002, Folsom CA 95630.
Last revised: December 30, 2010