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Your Acceptance
The top level domains WhatsUp.net and their Websites (individually and collectively
the "Website") are owned and operated by Focalstream Commerce, Inc. ("WhatsUp.net")
and/or its affiliates and subsidiaries for your and others' personal, non-commercial
enjoyment, subject to these terms and conditions of use and all modifications thereto
("Terms and Conditions"), and the rules that may be published from time to time
by WhatsUp.net. BY USING THE WEBSITE, WHETHER OR NOT YOU CREATE A MEMBERSHIP ACCOUNT,
YOU ARE DEEMED TO HAVE AGREED TO THESE TERMS AND CONDITIONS OF USE. WhatsUp.net
may change the Terms and Conditions from time to time and at any time, and without
actual notice to you. All such changes to these Terms and Conditions will appear
on the Website. Material changes to the Terms and Conditions will be posted one
month before they are effective. All non-material changes will become effective
on the date they are posted. By using the Website after we post any changes to the
Terms and Conditions, you agree to accept those changes, whether or not you have
reviewed them.
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Website Access & Membership Information
- WhatsUp.net hereby grants you permission to use the Website as set forth in this
Terms and Conditions, provided that: (i) your use of the Website as permitted is
solely for your personal use; (ii) you will not copy or distribute any part of the
Website in any medium except according to WhatsUp.net's policies for such set forth
in these Terms and Conditions without WhatsUp.net's prior authorization (to do so,
please see our Reprint and Permissions page); (iii) you will not alter or modify
any part of the Website other than as may be reasonably necessary to use the Website
for its intended purpose; and (iv) you will otherwise comply with the Terms and
Conditions.
- The Website and all Website functionality, including User Submissions, (defined
below), message boards, SMS messaging, or other interactive or telephonic service
that may be available to you on or through the Website (collectively, the "Services")
are provided to you solely for your enjoyment and entertainment purposes. Some Services
require you to create a membership account. You may never use another's account
without permission. When creating your account, you must provide accurate and complete
information, and WhatsUp.net reserves the right to terminate your subscription and
refuse any and all current or future use of the Services if you provide inaccurate
or incomplete information. You understand that you are solely responsible for maintaining
confidentiality of any passwords you create as a part of the Services. You are solely
responsible for the activity that occurs on your account, and you must keep your
account password secure. It is absolutely necessary that you immediately notify
WhatsUp.net of any breach of security or unauthorized use of your account. If such
a breach has occurred, contact us by email at abuse@whatsup.net.
You may never use another's account without permission. Although WhatsUp.net will
not be liable for harm or losses caused by any unauthorized use of your account,
by your conduct, you may be liable for the harm or losses of WhatsUp.net or others
due to such unauthorized use.
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Privacy Policy
Please read our Privacy Policy which describes the personally
identifiable information (the "Personal Information") we collect, use, disclose,
manage and store.
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Intellectual Property Rights
The content on the WhatsUp.net Website, except User Submissions (as defined below),
including without limitation, the text, software, scripts, graphics, photos, sounds,
music, videos, interactive features and the like ("Content") and the trademarks,
service marks and logos contained therein ("Marks"), are owned by or licensed to
WhatsUp.net, subject to copyright and other intellectual property rights under United
States and foreign laws and international conventions. Content on the Website is
provided to you AS IS for your information and personal use only and may not be
used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold,
licensed, or otherwise exploited for any other purposes whatsoever, except as permitted
by these Terms and Conditions, without the prior written consent of the respective
owners. WhatsUp.net reserves all rights not expressly granted in and to the Website
and the Content. You agree to not engage in the use, copying, or distribution of
any of the Content other than expressly permitted herein, including any use, copying,
or distribution of User Submissions of third parties obtained through the Website
for any commercial purposes. If you download or print a copy of the Content for
personal 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 WhatsUp.net Website or features that prevent or restrict
use or copying of any Content or enforce limitations on use of the WhatsUp.net Website
or the Content therein.
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User Submissions
- The WhatsUp.net Website may now or in the future permit the submission of writings,
art works or other visual images 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, WhatsUp.net does not guarantee
any confidentiality with respect to any submissions.
- You shall be solely responsible for your own User Submissions and the consequences
of posting or publishing them. In connection with User Submissions, you affirm,
represent, and/or warrant that: (i) you own or have the necessary licenses, rights,
consents, and permissions to use and authorize WhatsUp.net to use all patent, trademark,
trade secret, copyright or other proprietary rights in and to any and all User Submissions
to enable inclusion and use of the User Submissions in the manner contemplated by
the Website and these Terms of Service; and (ii) you have the written consent, release,
and/or permission of each and every identifiable individual person in the User Submission
to use the name or likeness of each and every such identifiable individual person
to enable inclusion and use of the User Submissions in the manner contemplated by
the Website and these Terms of Service. For clarity, you retain all of your ownership
rights in your User Submissions, but license it exclusively to WhatsUp.net. However,
by submitting the User Submissions to WhatsUp.net, you hereby grant WhatsUp.net:
(a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, exclusive
right and license to (i) use, reproduce and distribute your User Submissions within
the Website as permitted by you through your interactions on the Website, and (ii)
use, distribute, reproduce and make derivative works (and to authorize third parties
to use and reproduce) any of your User Submissions in any or all media for marketing
and/or promotional purposes in connection with the Website or any other part of
WhatsUp.net's business, provided that in the event that your User Submissions appears
publicly in material under the control of WhatsUp.net, and you provide written notice
to WhatsUp.net of your desire to discontinue the distribution of such User Submissions
in such material (with sufficient specificity to allow WhatsUp.net, in its sole
discretion, to identify the relevant User Submissions and materials), WhatsUp.net
will make commercially reasonable efforts to cease its distribution of such User
Submission following the receipt of such notice, although WhatsUp.net cannot provide
any assurances regarding materials produced or distributed prior to the receipt
of such notice; (b) the perpetual and irrevocable right to delete any or all of
your User Submissions from WhatsUp.net's servers and from the Website, whether intentionally
or unintentionally, and for any reason or no reason, without any liability of any
kind to you or any other party; and (c) a royalty- free, fully paid-up, perpetual,
irrevocable, exclusive right and license to copy, analyze and use any of your User
Submissions as WhatsUp.net may deem necessary or desirable for purposes of debugging,
testing and/or providing support services in connection with the Website. Further,
you agree to grant to WhatsUp.net a royalty-free, worldwide, fully paid-up, perpetual,
irrevocable, exclusive, sublicensable right and license to exercise the copyright,
publicity, and database rights you have in your account information, including any
data or other information generated by your account activity, in any media now known
or not currently known, in accordance with our privacy policy as set forth at the
Privacy Policy page; (d) a license to use, reproduce, distribute, display, and perform
the User Submissions in connection with the WhatsUp.net Website and WhatsUp.net's
(and its successor's) business, including without limitation for promoting and redistributing
part or all of the WhatsUp.net Website (and derivative works thereof) in any media
formats and through any media channels. You also hereby grant each user of the WhatsUp.net
Website a license to access your User Submissions through the Website, and to use,
reproduce, distribute, 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 terminates once you remove or delete a User Submission from
the WhatsUp.net Website.
- In connection with User Submissions, you further agree 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 WhatsUp.net all of the license rights granted herein;
(ii) publish falsehoods or misrepresentations that could damage WhatsUp.net or any
third party; (iii) submit material that is unlawful, defamatory, libelous, harassing,
hateful, or encourages conduct that would be considered a criminal offense, give
rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post
advertisements or solicitations of business: (v) impersonate another person. WhatsUp.net
expressly disclaims any and all liability in connection with User Submissions. WhatsUp.net
does not permit copyright infringing activities and infringement of intellectual
property rights on its Website, and WhatsUp.net will remove all Content and User
Submissions if properly notified that such Content or User Submission infringes
on another's intellectual property rights. WhatsUp.net reserves the right to decide
whether Content or a User Submission is appropriate and complies with these Terms
of Service for violations other than copyright infringement and violations of intellectual
property law, such as, but not limited to defamatory material. WhatsUp.net may remove
such User Submissions and/or terminate a User's access for uploading such material
in violation of these Terms of Service at any time, without prior notice and at
its sole discretion.
- You understand that when using the WhatsUp.net Website, you will be exposed to User
Submissions from a variety of sources, and that WhatsUp.net 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 may be inaccurate, or that you may find offensive
or objectionable, and you agree to waive, and hereby do waive, any legal or equitable
rights or remedies you have or may have against WhatsUp.net with respect thereto,
and agree to indemnify and hold WhatsUp.net, its Owners/Operators, affiliates, and/or
licensors, harmless to the fullest extent allowed by law regarding all matters related
to your use of the site.
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User Conduct
Without limitation of the foregoing, you agree to not use the Website or Services
to:
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any information,
data, text, music, sound, photographs, graphics, video, messages or other materials,
including any User Submissions, that is unlawful, harmful, threatening, embarrassing,
abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive,
fraudulent, contains explicit or graphic descriptions or accounts of sexual acts,
invasive of another's privacy, or hateful;
- "Stalk" another;
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content
that victimizes, harasses, degrades, or intimidates an individual or group of individuals
on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- Harm minors in any way;
- Impersonate any person or entity, including, but not limited to, a WhatsUp.net official,
or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin
of any Content or User Submissions transmitted to or through the Web Site;
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content
or User Submissions that you do not have a right to transmit under any law or under
contractual or fiduciary relationships (such as inside information, proprietary
and confidential information learned or disclosed as part of employment relationships
or under nondisclosure agreements);
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content
or User Submissions that infringes any patent, trademark, trade secret, copyright
or other proprietary rights of any party;
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any unsolicited
or unauthorized advertising, promotional materials, "junk mail," "Spam," "chain
letters," "pyramid schemes," or any other form of solicitation;
- Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any material
that contains software viruses, Trojan horses, worms, time bombs, cancelbots, or
any other computer code, files or programs designed to interrupt, destroy, or limit
the functionality of any computer software or hardware or telecommunications equipment
or any other similarly destructive activity, or surreptitiously intercept or expropriate
any system, data or personal information;
- Act in a manner that negatively affects other users' ability to engage in the Website
or Services;
- Engage in any activity that is contrary to or which would adversely affect the purpose
or intention of the Website or Services, including but not limited to, actually
or attempting to manipulate, corrupt or otherwise affect the outcome of the Services,
in whole or part, by, among other methods, subscribing another party without their
authorization or registering multiple subscriptions under the same or different
names;
- Interfere with or disrupt the Website Service or servers or networks connected to
the Website or Service, or disobey any requirements, procedures, policies or regulations
of networks connected to the Website or Service;
- Intentionally or unintentionally violate any applicable local, state, national or
international law; or
- Harvest, collect or store information about the users of this Website or the User
Submissions, so-called “phishing,” or use such information for any purpose inconsistent
with the purpose of this Website or for the purpose of transmitting or facilitating
transmission of unsolicited bulk electronic mail or communications.
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Copyright Owners
If you are a copyright owner or an agent thereof and believe that any User Submission
or other content infringes upon your copyrights, 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) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the
owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that site;
- 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 the service provider to locate the
material;
- Information reasonably sufficient to permit the service provider to contact you,
such as an address, telephone number, and, if available, an electronic mail;
- 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
- 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.
WhatsUp.net's designated Copyright Agent to receive notifications of claimed infringement
is: Copyright Agent, P.O.Box 123, Saint Charles, IL 60174, email:
copyright@whatsup.net. For clarity, only DMCA notices should go to the Copyright
Agent; any other feedback, comments, requests for technical support, and other communications
should be directed to WhatsUp.net customer service through http://www.whatsup.net.
You acknowledge that if you fail to comply with all of the requirements of this
Section 5(D), your DMCA notice may not be valid.
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External Links
The Website may contain links to other websites. WhatsUp.net is not responsible
for the privacy practices or content of other websites. When you leave a WhatsUp.net
Website, WhatsUp.net advises you to read the privacy statements of each and every
website that collects personally identifiable information. The presence of external
links on the Website does not imply WhatsUp.net's endorsement of or association
with the linked site. These Terms of Use apply solely to WhatsUp.net's Websites.
In no event shall WhatsUp.net be liable, directly or indirectly, to anyone for any
loss or damage arising from or occasioned by the creation or use of the linked sites
or the information or the material accessed through these linked sites.
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Contests
From time to time, WhatsUp.net may offer as part of the Services, either on or through
the Website, contests, promotions, simulations or games (collectively, "Contests").
To participate in Contests, players may be required to complete a registration form.
Upon submission, all registrations become the exclusive property of WhatsUp.net.
You agree to release WhatsUp.net and its agents, advertisers, sponsors or promotional
partners, from all liability arising from participation in any of Contest located
on, or accessed through, the Website. WhatsUp.net is not responsible for technical,
hardware or software failures of any kind, lost or unavailable network connections,
or failed, incomplete, garbled or delayed computer transmissions which may limit
your ability to participate in any Contest.
You agree to be bound by the rules of any Contest, if any, and by the rules of fair
play and consideration of fellow users. Violators of any of the rules or guidelines
for behavior published on the Website, or the site where the Contest is conducted,
are subject to immediate disqualification and revocation of their membership. WhatsUp.net
is under no obligation to award any prize to any user who violates a published rule
or guideline.
Some Contests may offer prizes. All prizes are subject to the official game or contest
rules published with that Contest.
WhatsUp.net reserves the right to cancel, terminate or alter any Contest or the
rules thereof at any time without prior notification.
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Age of Majority
The website is designed to appeal to adults; WhatsUp.net does not knowingly solicit
any information from children nor does WhatsUp.net knowingly market or otherwise
target Websites to children. If WhatsUp.net becomes aware that you are under the
legal drinking age in the country or other territory in which you are located at
the relevant time and has registered without verifiable parental consent, WhatsUp.net
will remove your personal information from our files. You agree to abide by any
such restrictions, and not to help anyone avoid these restrictions.
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Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE WHATSUP.NET WEBSITE SHALL BE AT YOUR SOLE RISK. TO
THE FULLEST EXTENT PERMITTED BY LAW, WHATSUP.NET, ITS OFFICERS, DIRECTORS, EMPLOYEES,
AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE
AND YOUR USE THEREOF. WHATSUP.NET MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE
ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED
TO THIS SITE AND 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, (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 OMISSIONSIN ANY CONTENT OR FOR ANY 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 WHATSUP.NET WEBSITE. WHATSUP.NET DOES NOT WARRANT, ENDORSE,
GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED
BY A THIRD PARTY THROUGH THE WHATSUP.NET WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED
IN ANY BANNER OR OTHER ADVERTISING, AND WHATSUP.NET WILL NOT BE A PARTY TO OR IN
ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY
PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE
THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND
EXERCISE CAUTION WHERE APPROPRIATE.
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Limitation of Liability
IN NO EVENT SHALL WHATSUP.NET, 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 POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA
THE WHATSUP.NET WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER
LEGAL THEORY, AND WHETHER ORNOT THE COMPANY 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.
YOU SPECIFICALLY ACKNOWLEDGE THAT WHATSUP.NET SHALL NOT BE LIABLE FOR USER SUBMISSIONS
OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE
RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Website is controlled and offered by WhatsUp.net from its facilities in the
United States of America. WhatsUp.net makes no representations that the WhatsUp.net
Website is appropriate or available for use in other locations. Those who access
or use the WhatsUp.net Website from other jurisdictions do so at their own volition
and are responsible for compliance with local law.
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Indemnity
You agree to defend, indemnify and hold harmless WhatsUp.net, its officers, directors,
employees and agents, from and against any and all claims, damages, obligations,
losses, liabilities, costs or debt, and expenses (including but not limited to attorney's
fees) arising from: (i) your use of and access to the WhatsUp.net 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; or (iv) any claim that one of your User Submissions caused damage to a third
party. This defense and indemnification obligation will survive these Terms of Service
and your use of the WhatsUp.net Website.
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Ability to Accept Terms of Service
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.
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Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be
transferred or assigned by you, but may be assigned by WhatsUp.net without restriction.
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General
You agree that: (i) the WhatsUp.net Website shall be deemed solely based in Illinois;
and (ii) the WhatsUp.net Website shall be deemed a passive website that does not
give rise to personal jurisdiction over WhatsUp.net, either specific or general,
in jurisdictions other than Illinois. These Terms of Service shall be governed by
the internal substantive laws of the State of Illinois, without respect to its conflict
of laws principles. Any claim or dispute between you and WhatsUp.net that arises
in whole or in part from the WhatsUp.net Website shall be decided exclusively by
a court of competent jurisdiction located in DuPage County, Illinois. These Terms
of Service, any artist representation agreements and any other legal notices published
by WhatsUp.net on the Website, shall constitute the entire agreement between you
and WhatsUp.net concerning the WhatsUp.net Website. If any provision of this agreement
is in conflict with a provision in a signed artist representation agreement, the
artist representation agreement provision shall prevail. If any provision of these
Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity
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 this these Terms of Service shall be deemed a further or continuing waiver
of such term or any other term, and WhatsUp.net's failure to assert any right or
provision under these Terms of Service shall not constitute a waiver of such right
or provision. WhatsUp.net 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 WhatsUp.net Website following any amendment
of these Terms of Service will signify your assent to and acceptance of its revised
terms. YOU AND WHATSUP.NET AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED
TO THE WHATSUP.NET WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.