1. OWNERSHIP, LICENSE & RESTRICTIONS ON USE
1.1 All right, title and interest (including all copyrights, trademarks and other intellectual property rights) in this Site belongs to The Tomahawk. In addition, the names, images, pictures, logos and icons identifying The Tomahawk’s products and services are proprietary marks of The Tomahawk and/or its subsidiaries or affiliates. Except as expressly provided below, nothing contained herein shall be construed as conferring any license or right, by implication, estoppels or otherwise, under copyright, trademark or other intellectual property rights.
1.2 You are hereby granted a non-exclusive, non-transferable, limited license to view this Site, and to download and/or print insignificant portions of materials retrieved from this Site provided (a) it is used only for informational, non-commercial purposes, and (b) you do not remove or obscure the copyright notice or other notices. Except as expressly provided above, no part of this Site, including but not limited to materials retrieved there from and the underlying code, may be reproduced, republished, copied, transmitted, or distributed in any form or by any means, without the express written permission of The Tomahawk.
2. LINKS TO THIRD PARTY SITES
2.2 The Tomahawk may now or in the future allow you to place classified or other forms of advertisements (“Classified Ad”). In publishing a Classified Ad, we will only accept standard abbreviations and proper punctuation. We do not accept any liability for any errors or omissions by the seller in the description of goods used in the Classified Ad. We are not obligated to publish any Classified Ad. We reserve the right to edit, re-classify, revise, reject, or cancel any Classified Ad at any time, at our sole discretion. Any publication of a Classified Ad does not constitute an agreement for continued publication. Publication does not constitute an endorsement or sponsorship of the seller. Any use of a Classified Ad is AT YOUR OWN RISK. We are never a party to any transaction between buyers and sellers. We do not review any Classified Ad and are not liable for any transactions between buyers and sellers. We do not knowingly accept any Classified Ad that discriminates or intends to discriminate based on race, color, religion, gender, national origin, handicap, or familial status. We do not knowingly accept any Classified Ad regarding employment that is not for a bona fide job opportunity nor do we knowingly accept any that are for tobacco, gentlemen’s clubs, adult-oriented materials, offshore services, or Internet gambling.
3.1 THIS SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND The Tomahawk EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
3.2 The Tomahawk disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of, or in any way related to (a) any errors in or omissions from this Site, including but not limited to technical inaccuracies and typographical errors, (b) any third party websites or content therein directly or indirectly accessed through links in this Site, including but not limited to any errors in or omissions therefrom, (c) the unavailability of this Site or any portion thereof, (d) your use of this Site, or (e) your use of any equipment or software in connection with this Site.
4. LIMITATION OF LIABILITY
A COVERED PARTY (AS DEFINED BELOW) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND LOST PROFITS OR SAVINGS) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS SITE OR THE SERVICES, INCLUDING ITS CONTENT, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. “Covered Party” means The Tomahawk, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any of them.
5. PRODUCT & SERVICE AVAILABILITY IN FOREIGN COUNTRIES
This Site may contain references or cross references to The Tomahawk’s products and services that are not available in every country.
6. GOVERNING LAW; JURISDICTION; DISPUTES
You furthermore agree that any Dispute will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
In the event of a Dispute, you or The Tomahawk must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to The Tomahawk at Attention Alan Broyles, Operations Manager, 204 W Main St, Johnson City, TN 37604. You and The Tomahawk will attempt to resolve any Dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or The Tomahawk may commence arbitration. You are not required to wait 60 days to file a small claims action.
The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s supplementary procedures for consumer-related disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You agree to commence arbitration only in your county of residence or in Johnson County, Tennessee. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, The Tomahawk will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submission, or in person by following the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could.
You agree that the making of claims or resolution of Disputes pursuant to this agreement shall be in your individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. You agree that to the extent permitted by applicable law, that any and all Disputes will be resolved individually in the forum designated in this section, without resort to any form of class action.
To the extent permitted by law, any Dispute to which this section applies must be filed within one year in small claims court or in arbitration with the AAA. The one-year period begins when the claim or Notice of Dispute could first be filed. If such a Dispute isn’t filed within one year, it’s permanently barred.
If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
7. CHANGES TO SITE AND THESE TERMS AND CONDITIONS
8. ENTIRE AGREEMENT; SEVERABILITY
9. ELECTRONIC COMMUNICATIONS
When you use our Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site or through the other Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Any communication or other information sent to The Tomahawk via e-mail or otherwise in connection with your use of this Site, including but not limited to suggestions, ideas and comments, will be treated as non-confidential and all such information may be used by The Tomahawk for any purpose without compensation. Disclosure shall constitute an assignment of all right, title and interest in such information to The Tomahawk.
10. LINKS TO The Tomahawk’s WEB PAGES
10.2 When linking to this Site you may use one or more The Tomahawk’s logos as a link anchor. To ensure proper usage of The Tomahawk’s logos, we’ve presented them here. These logos are trademarks of The Tomahawk and The Tomahawk retains all rights in them. The Tomahawk grants you a limited license to use these logos solely for linking to The Tomahawk web pages as provided above. Logos cannot be altered or modified other than to make them larger or smaller. Except for the limited license provided above, The Tomahawk does not grant, by implication, estoppels or otherwise, any license to use any trademark, copyrighted materials or other proprietary materials displayed on this Site and any other use is strictly prohibited.
11. MESSAGE BOARDS, BLOGS, & SHARING
11.1 The Tomahawk may, now or in the future, allow users to post, upload transmit through, or otherwise make available on the Site (collectively, “submit”) messages, receipts, text, illustrations, personal stories, reviews, illustrations, files, graphics, photos, comments, sounds, music, videos, information, content, or other materials (“User Content”). The Tomahawk is not responsible for User Content for any links or images embedded in the User Content, or for the results obtained by using the User Content. The Tomahawk does not endorse or warrant, and is not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement contained in User Content. Under no circumstances will The Tomahawk be liable for any loss or damage caused by reliance on the Site, User Content or information or materials obtained through User Content.
You shall not submit any User Content that is protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, or property right of a third party without the owner’s express permission. You are solely liable for any damages resulting from your failure to obtain consent.
You shall not submit content that (a) violates or infringes the rights of others; (b) is unlawful, defamatory, threatening, harassing, abusive, libelous, invasive of privacy or publicity rights, vulgar, obscene, pornographic, profane, lewd, lascivious, excessively violent, or otherwise objectionable; (c) encourages criminal conduct or conduct that gives use to civil liability or otherwise violates any law; (d) advertises goods or services; (e) solicits funds; (f) contains instructions, formulas, or advice that could harm or injure; or (g) is a chain letter of any kind.
User Content, including any personally identifiable information (including as name, address, telephone number, or email address), submitted is accessible to other users, including people you may not know. Making this information available may result in receiving unsolicited emails or of other users sharing your information. You should use discretion when communicating with others or disclosing personal information. The Tomahawk has no control over and shall have no liability for any damages resulting from the use or misuse by any third party of information that you make public by submitting it. If you choose to make personally identifiable information available you do so at your own risk.
By submitting User Content, you automatically grant The Tomahawk a world-wide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable and transferable, right and license to use, record, sell, lease, reproduce, distribute, create derivative works, from publicly displaying or perform, transmit, publish, and otherwise exploit the User Content, in whole or part as The Tomahawk deems appropriate including, but not limited to, in connection with The Tomahawk, its subsidiaries, affiliates, or business.
The Tomahawk has the right, but not the obligation, to monitor the User Content. We reserve the right not to post any User Content, but we do not have an obligation to post, maintain, screen or otherwise use User Content. We may discontinue the ability to submit User Content in our own discretion.
The User is responsible for evaluating the accuracy, timeliness, and completeness of all content on the Site including User Content.
11.2 DMCA Notice. The Tomahawk asks our users to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In The Tomahawk’s sole discretion, The Tomahawk may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, The Tomahawk has adopted a policy of terminating, in appropriate circumstances and at The Tomahawk’s sole discretion, users who are deemed to be repeat infringers. If we remove or disable access in response to a DMCA Notice (as defined below), we will make a good faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter-notification. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you 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;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
The Tomahawk will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
By Mail: Attention Alan Broyles, Operations Manager, 204 W Main St, Johnson City, TN 37604
By E-Mail: email@example.com
By Facsimile: 423-929-8010
It is often difficult to determine if your copyright has been infringed. The Tomahawk may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and The Tomahawk may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting The Tomahawk’s other rights, The Tomahawk may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by The Tomahawk.
12. YOUR ACCOUNT
You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account.
IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE IN FULL, YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THIS SITE.
Effective: January 1, 2014
Last Updated: May 21, 2014