Effective Date: November 2016
Welcome to exceleratedigital.com®, McClatchy’s national digital marketing agency offering media and promotion solutions of excellence in search engine optimization, branded video production, social media management, programmatic advertising, content creation for blogs or native advertising and other strategies at the forefront of the online media landscape. As used in these Terms of Service, “excelerate Digital ” means exceleratedigital.com, excelerate Digital, McClatchy, as well as all parent entities, subsidiaries and affiliates of McClatchy.
You understand and agree that, by visiting exceleratedigital.com and its affiliated sites and by using the excelerate Digital mobile apps, you are accepting, without modification, these Terms of Service. If you do not agree with any portion of these Terms of Service, your only option is to discontinue use of exceleratedigital.com and its mobile apps. In agreeing with these Terms of Service, you represent and warrant that you are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements. If you are under eighteen (18) then you may only use exceleratedigital.com with the consent of a parent or legal guardian.
These Terms of Service are subject to revision from time to time by exceleratedigital.com and your continued use of exceleratedigital.com means you agree to, without modification, the revised Terms of Service. If you are a registered member of exceleratedigital.com, you will be notified of material revisions to these Terms of Service via an e-mail message to the e-mail address that you provided at registration or that you have since updated. If you are not a registered member of exceleratedigital.com, then you can review revisions to these Terms of Service by regularly checking this page. Material revisions to these Terms of Service will be indicated by an updated effective date at the top left corner of this page and by a notice posted on the homepage of exceleratedigital.com. Whether or not you are a registered member of exceleratedigital.com, it is your responsibility to remain apprised of any revisions to these Terms of Service and to remain in compliance therewith. Should you object to any such revisions to these Terms of Service or become dissatisfied with exceleratedigital.com in any way, your only recourse is to immediately terminate your membership and discontinue use of exceleratedigital.com. Otherwise, continuing to use the membership service and continuing to visit exceleratedigital.com after the effective date means that you agree to be bound by any and all revisions.
From time to time, and at exceleratedigital.com’s sole discretion, there may be certain content available via subscription or surcharge, and you will be alerted when any such charges apply if you have not already subscribed or agreed to the charges.
Access to some or all of the content, services and features on exceleratedigital.com may require users to register and become members of exceleratedigital.com. If you are a member of exceleratedigital.com, you accept responsibility for all activities that occur under your account whether or not you expressly authorize such activities. You are responsible for maintaining the confidentiality of your password and for restricting access to your computer so others may not access exceleratedigital.com using your username or account in whole or in part. exceleratedigital.com may terminate membership and deny access to exceleratedigital.com to any person for any reason in its sole discretion. You will not compromise, or attempt to compromise, the security of your account. Additionally and without limiting the generality of the preceding sentence, exceleratedigital.com may terminate membership and deny access to exceleratedigital.com to any person who, in exceleratedigital.com’s sole discretion, violates these Terms of Service. Such termination or denial of access shall be in addition to any remedies available to excelerate Digital and exceleratedigital.com in law and equity.
5.1. Copyright and other intellectual property rights
Material published on exceleratedigital.com and through other digital channels such as mobile apps, including articles, white papers, research, analysis, photos, Content Feeds, graphics, forum postings, audio and video clips, trademarks, service marks, and other content (“Content”), is copyrighted by excelerate Digital, or by other information providers who have licensed their content for use on exceleratedigital.com. Additionally, the entire Content of exceleratedigital.com is protected by copyright as a collective work owned by excelerate Digital. You may not reproduce, republish or redistribute Content or any portions thereof, including, without limitation, Content provided by licensors and others, including member-submitted content, without the written consent of the copyright owner.
5.2. License grant to access exceleratedigital.com
Subject to these Terms of Service, exceleratedigital.com grants you permission to access exceleratedigital.com and view the Content solely for your personal, non-commercial use. In addition to viewing Content online, you may electronically store a reasonable portion of exceleratedigital.com Content for your personal, non-commercial use by making a single electronic copy on your computer’s hard drive, or a single copy on a disk or other media or a single copy in printed form. You agree, however, that you will not store or archive a significant portion of the Content or create a database using the Content.
These rules also apply to your use of exceleratedigital.com:
1. You will not in any way infringe or misappropriate any of the intellectual property in and to the Content accessible through exceleratedigital.com. This means you agree not to copy, modify, publish, transmit, create derivative works from, transfer, sell or display the Content, including logos, trademarks or service marks, or otherwise violate the proprietary rights of exceleratedigital.com or others except as expressly permitted herein.
2. You will not reuse, republish or otherwise distribute the Content or any modified or altered versions of it, whether over the World Wide Web or otherwise, and whether or not for payment, without the express written permission of excelerate Digital or a third-party copyright holder.
3. You will cooperate promptly and completely with any reasonable request by excelerate Digital or exceleratedigital.com related to an investigation of infringement of copyright or other proprietary right.
To obtain permission to reuse or republish excelerate Digital copyrighted material in any format, please email [email protected]
excelerate Digital cannot grant permission to reuse or republish material from other information providers, such as the Associated Press or New York Times News Service; however, these information providers are intended third party beneficiaries of these terms and conditions and they may exercise all rights and remedies available to them. Please contact them directly to obtain permission.
5.3. Member-submitted content
Members and other users of exceleratedigital.com may be able, as dictated by the functionality of exceleratedigital.com, to submit or to otherwise make available messages, e-mails, photographs, videos, blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, various social media services, and other content for display on exceleratedigital.com (“Member Content”). You are solely responsible for Member Content that you submit, and exceleratedigital.com acts as a passive conduit for your online distribution and publication of Member Content. Member Content must conform to the guidelines below. Without limiting any of its rights in law and equity, exceleratedigital.com reserves the right to remove any Member Content for any reason in its sole discretion including any Member Content that it believes may violate these Terms of Service, or any copyright or third-party rights.
By submitting or otherwise making available any Member Content to exceleratedigital.com, you automatically grant excelerate Digital and exceleratedigital.com a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, sublicensable (through multiple tiers), license to use, modify, copy, distribute, transmit, publicly display, publicly perform, publish, adapt, create derivative works of, distribute, transfer or sell any such content, for any purpose, including commercial purposes and in connection with advertising for the sole benefit of exceleratedigital.com (collectively, “use”), in any type of media or in any form now known or later developed, without any payment to you. In addition, you automatically waive and give up any claim that any use of such content violates any of your rights, including privacy rights, publicity rights, moral rights or any other right, including the right to approve the way exceleratedigital.com uses such content. You also grant excelerate Digital and exceleratedigital.com the right to use any material, information, ideas, concepts, know-how, or techniques contained in any communication you provide, submit, or otherwise make available to exceleratedigital.com or to excelerate Digital for any purpose whatsoever, including, without limitation, commercial purposes. By submitting Member Content, you automatically warrant and represent to excelerate Digital and exceleratedigital.com that you are the owner of all intellectual property rights in and to the Member Content or that you otherwise have all sufficient rights to grant the license above. By submitting Member Content, you further warrant and represent that the Member Content infringes no third-party right of privacy, right of publicity, or any other third-party right or proprietary interest.
5.4. Content Feeds
5.4.1. License Grant for Content Feeds exceleratedigital.com offers or may offer content feeds, consisting of a selection of headlines, summaries, text blurbs, and links to full stories, which are delivered using Really Simple Syndication (“RSS”) technology, other XML (extensible Markup Language) technology, or other syndication technology (“Content Feed(s)”). Subject to these Terms of Service, and to the extent that exceleratedigital.com elects to offer Content Feeds(s), exceleratedigital.com grants you a revocable, nontransferable, non-sublicensable, royalty-free, nonexclusive license to display the Content Feeds on your personal Web site or blog (“Site”). For purposes of these Terms of Service, “Content Feed(s)” includes the Content included therein, or any portion thereof. The foregoing license expressly excludes content from exceleratedigital.com not included in the Content Feed(s); by way of example only, if the Content Feed(s) include only the headline and first paragraph of a story on exceleratedigital.com, the foregoing license does not give you the right to display the entire story on your Site.
5.4.2. Reservation of Rights Except as expressly set forth in Section 5.4.1, and/or unless otherwise consented to in writing by exceleratedigital.com, you may not, directly or indirectly: (a) sell, modify, translate, copy, publish, transmit, distribute or otherwise disseminate the Content Feed(s); (b) delete or fail to display any promotional taglines included in the Content Feed(s); or (c) rent, lease, or otherwise transfer rights to any Content Feeds.
5.4.3. Further Restrictions; No Modification. Unless otherwise consented to in writing by exceleratedigital.com, you will: (a) display the Content Feed on your Site in the exact form received by you, and not modify or edit it; (b) ensure that the fundamental meaning of the Content Feed is not changed or distorted; (c) comply with all applicable laws and all limitations and restrictions (if any) placed by exceleratedigital.com on the use, display or distribution of any Content Feed. You will not (s) archive any Content Feeds for access by users at any future date after the Content Feed has been removed from your Site; (t) display the name, logo, trademark or other identifier of another person on your Site in such a manner as to give the viewer the impression that such other person is a publisher or distributor of exceleratedigital.com; (u) remove, conceal or obliterate any copyright or other proprietary notice or any credit-line, date-line or other mark or source identifier included on the Content Feed(s), including without limitation, the size, color, location or style of exceleratedigital.com’s marks; (v) make any representation or warranty on behalf of exceleratedigital.com; (w) incorporate any Content Feeds on any site containing nudity or pornographic material, that displays material that exploits children under the age of 18, that promotes or provides instructional information about illegal activities or physical harm or injury against any group or individual, or that uses the exceleratedigital.com in any manner that is obscene, defamatory, libelous, invasive of personal privacy or misleading; (x) display the Content Feed in a manner that does not allow for successful linking and redirection to, and delivery of, exceleratedigital.com’s page; (y) frame any exceleratedigital.com page; or (z) fail to stipulate that the Content Feed is supplied by exceleratedigital.com and is protected by copyright and owned by excelerate Digital.
5.4.4. Warranty If you use the Content Feed services, you warrant that your Site does not infringe the intellectual property of any third parties. You further warrant that your Site violates no applicable law.
exceleratedigital.com respects the copyrights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), the text of which may be found on the U.S. Copyright Office site at http://www.copyright.gov/legislation/dmca.pdf, exceleratedigital.com will respond expeditiously to notices of alleged copyright infringement that are duly reported to our Designated Copyright Agent identified in the notice below. We will disable and/or terminate the accounts of Users who are repeat infringers.
If you believe that exceleratedigital.com or any user of exceleratedigital.com has infringed your copyright, please notify our Copyright Agent and provide the following information.
1. An identification of the copyrighted work that you claim has 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.
2. An identification of the material on exceleratedigital.com that you claim is infringing or is subject to infringing activity that is to be removed or access to which is to be disabled, with enough detail (including without limitation the URL of the material) to allow us to locate the material on our site.
3. Your name, address, telephone number and e-mail address.
4. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
5. A statement by you declaring that the above information in your Notice is accurate, made under penalty of perjury, and that you are authorized to act on behalf of the owner of an exclusive copyright interest involved.
6. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Copyright Agent for exceleratedigital.com is Juan Cornejo, McClatchy, Assistant General Counsel, who can be reached at (916) 321-1848, [email protected] or 2100 Q Street, Sacramento, CA 95816. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
exceleratedigital.com encourages a free and open exchange of ideas in a climate of mutual respect. Any action by a user that infringes on another user’s right to use and enjoy exceleratedigital.com is prohibited. exceleratedigital.com reserves the right, but does not assume any obligation, to monitor your online conduct to enforce these Terms of Service. Specifically, you may not do (or attempt to do) any of the following:
1. Provide any information that is false, misleading or inaccurate.
2. Use any portion of exceleratedigital.com for any unlawful purpose or otherwise fail to comply with all applicable domestic and international laws, statutes, ordinances and regulations.
3. Use any portion of exceleratedigital.com for uploading, posting, e-mailing, transmitting or otherwise making available Member Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
4. Use any portion of exceleratedigital.com for uploading, posting, e-mailing, transmitting or otherwise making available Member Content that is harmful to minors in any way, harassing, harmful, threatening, abusive, vulgar, obscene, defamatory, libelous, hateful, or racially, ethnically or otherwise objectionable.
5. Use any portion of exceleratedigital.com for uploading, posting, e-mailing, transmitting or otherwise making available junk mail, commercial advertisements, or any other form of commercial solicitation.
6. Interfere with any other person’s use of or the proper functioning of exceleratedigital.com.
7. Misrepresent your identity or impersonate any person.
8. Hold yourself out as sponsored by, endorsed by, or affiliated with excelerate Digital or exceleratedigital.com.
9. Modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by excelerate Digital or exceleratedigital.com in connection with exceleratedigital.com.
10. Use or launch any automated means including spiders, robots, crawlers, scrapers and the like, to download or copy data or content from exceleratedigital.com.
11. Distribute any material that contains software viruses or any other computer code, files, or programs that are designed or intended to: (i) disrupt, damage, or limit the functioning of exceleratedigital.com, any software, hardware, or telecommunications equipment used in connection therewith; or (ii) damage or obtain unauthorized access to any data or other information of any third party.
12. Take any action that: (i) imposes or may impose, in exceleratedigital.com’s sole discretion, an unreasonable or disproportionately large load on its infrastructure; (ii) interferes or attempts to interfere with the proper working of exceleratedigital.com; or (iii) disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of exceleratedigital.com.To register a complaint about another user’s conduct, please e-mail [email protected] or, or write to Customer Service, exceleratedigital.com, 2100 Q St., Sacramento, CA 95816.
While exceleratedigital.com strives for accuracy, it does not warrant or guarantee the accuracy or completeness of any information or database on our service. Nor does exceleratedigital.com warrant or guarantee that any files available for downloading will be free of defects. Neither excelerate Digital nor any of its information providers will be liable in any way to you or to other parties for delays, inaccuracies, errors or omissions in material published in exceleratedigital.com.
The content, services, and features of exceleratedigital.com are subject to change without notice. The inclusion of any content, services, and features on exceleratedigital.com at a particular time does not imply or warrant that these products or services will be available at any time.
While we take reasonable steps to ensure that no viruses, worms, Trojan horses or other destructive properties are present, the entire risk as to the quality and performance of exceleratedigital.com and the accuracy and completeness of any information is with you.
Opinions, advice and all other information expressed on exceleratedigital.com forums, comment sections, blogs, and any other area where user-generated Content is displayed, represent the individual’s own views and are not necessarily those of exceleratedigital.com. exceleratedigital.com does not endorse and is not responsible for statements, advice and opinions made by anyone other than authorized exceleratedigital.com spokespersons.
Any investment decisions or other actions that users take based on information available on exceleratedigital.com or in its mobile apps should first be reviewed by a competent financial adviser or other professional. THE exceleratedigital.com SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR WARRANTIES REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT OR ANY OTHER SERVICE OR PRODUCT ON OR RELATED TO THE SERVICE (INCLUDING ANY LINK TO ANOTHER WEB SITE OR RESOURCE).
8.2. Limitation of Liability
In no event will exceleratedigital.com, McClatchy, or their parents or affiliates be liable for (i) any incidental, consequential, or indirect damages (including, but not limited to, damages for loss of business profits, business interruption, loss of programs or information, and the like) arising out of the use of or inability to use exceleratedigital.com, or any information or services provided on exceleratedigital.com or in its mobile apps, even if exceleratedigital.com has been advised of the possibility of such damages, or (ii) any claim attributable to errors, omissions, or other inaccuracies published on exceleratedigital.com or in its mobile apps. IN NO EVENT WILL exceleratedigital.com, MCCLATCHY’S OR THEIR PARENTS’ OR AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE SITE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED $100.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You will defend, indemnify, and hold harmless exceleratedigital.com, McClatchy and their parents and affiliates from: (i) your use of and access of exceleratedigital.com; (ii) your violation of any of these Terms of Service; (iii) your violation of any third-party right including any copyright, trademark, trade secret, or privacy right related to any Member Content submitted by you (if applicable) or your use of the website. This defense and indemnification obligation will survive the term and your use of exceleratedigital.com.
We may terminate these Terms of Service, your account, or your access to exceleratedigital.com at any time with or without notice to you. You may terminate these Terms of Service or your account by: (a) discontinuing your use of exceleratedigital.com and (b) destroying and removing all copies of Content from your Site (if any) and that is otherwise in your possession and control.
This agreement between exceleratedigital.com and its users will be governed and interpreted under the laws of the state of California. Courts located in Sacramento County, California have jurisdiction in any dispute arising from these Terms of Service and you hereby agree to personal jurisdiction by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts, without regard to the conflict of laws. The United Nations Convention on the International Sales of Goods will not apply to this agreement or any matters relating to the use of this website and the purchase of any products or services through this site.
In the event that any provision of these Terms of Service is found to be in conflict with the law, such provision shall be restated to reflect the original intent, and all other terms and conditions shall remain in full force and effect.
10.3. Dispute Resolution and Arbitration
You and excelerate Digital agree to the following dispute resolution process for any legal controversy or legal claim arising out of or relating to these Terms of Service, exceleratedigital.com, any subscription to excelerate Digital or exceleratedigital.com or any other aspect of our relationship (“Subject Legal Claim”).
In an attempt to find the quickest and most efficient resolution of our issues, you and excelerate Digital agree to first discuss any issue informally for at least 30 days. To do that, please send your full name and contact information, your concern and your proposed solution by mail to us at: excelerate Digital, 2100 Q St., Sacramento, CA 95816, 916-321-1000 Attn: Unresolved Customer Issue. If we should need to discuss an issue with you, we will contact you using the email or mailing address on your account.
If we do not reach an agreed upon solution after our discussions for at least 30 days, you and excelerate Digital agree that any Subject Legal Claim that either of us may have must be resolved through binding individual arbitration before the American Arbitration Association using its Consumer Arbitration Rules. There are two limited exceptions to this Dispute Resolution and Arbitration provision: (i) either party may pursue in small claims court any action that is within that court’s jurisdiction, as long as the case proceeds on an individual basis only; (ii) either party may seek to enforce its patents, trademarks, copyrights or trade secrets in an appropriate state or federal court.
To help resolve any issues between us promptly and directly, you and excelerate Digital agree to begin any arbitration within one year after a Subject Legal Claim arises; otherwise, the Subject Legal Claim is waived. You and excelerate Digital also agree to arbitrate in each of our individual capacities only, not as a representative or member of a class, and each of us expressly waives any right to file a class action or seek relief on a class basis. All arbitration hearings will be held in Sacramento, California. The parties agree that this Dispute Resolution and Arbitration provision is subject to, and will be governed and enforced under, the Federal Arbitration Act.
You may download a form Notice to initiate arbitration at www.adr.org. If you initiate the arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Rules. It is important that you understand that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction. If the arbitrator rules against excelerate Digital, in addition to accepting whatever responsibility is ordered by the arbitrator, we think it’s fair that excelerate Digital reimburse your reasonable attorneys’ fees and costs, regardless of who initiated the arbitration. In addition, if the arbitrator rules in excelerate Digital’s favor, it will not seek reimbursement of our attorney’s fees, regardless of who initiated the arbitration.
If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
10.5. Complete Agreement
These Terms of Service represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior and contemporaneous agreements and understandings between them, whether written or oral.
10.6. Force Majeure
Neither party will be liable for any failure to perform any obligation (other than payment obligations) hereunder, or from any delay in the performance thereof, due to causes beyond its control, including industrial disputes of whatever nature, acts of God, public enemy, acts of government, failure of telecommunications, fire or other casualty.
10.7. Void Where Prohibited by Law
These Terms of Service are void where prohibited by law, and the right to access exceleratedigital.com is revoked in such jurisdictions.
10.8. Independent Contractors
The parties hereto are independent contractors, and these Terms of Service creates no partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You have no authority to make or accept any offers or representations on our behalf and you shall not make any statement, on your Site (if any) or otherwise, that conflicts with these Terms of Service.
10.9 Unsolicited Idea Submission Policy
excelerate Digital will not accept or consider unsolicited ideas, including ideas for new advertising, campaigns, new promotions, new products or technologies, processes, materials, marketing plans or new product names. Please do not send any original creative artwork, samples, demos or other works. The sole purpose of this policy is to avoid potential misunderstandings or disputes when excelerate Digital’s products or marketing strategies might seem similar to ideas submitted to excelerate Digital. So, please do not send your unsolicited ideas to excelerate Digital or anyone at excelerate Digital. If, despite our request that you not send us your ideas and materials, you still send them, please understand that excelerate Digital makes no assurances that your ideas and materials will be treated as confidential or proprietary.
excelerate Digital, 111 W. Hargett Street, Raleigh, NC 27601, 866-530-2729.
We hope you enjoy using exceleratedigital.com. Questions and comments about the content of exceleratedigital.com may be sent by e-mail to [email protected]. We try to read all comments sent to us and try to respond to as many as possible. Technical questions regarding your software, your configuration or your connection should be directed to your Internet access provider. exceleratedigital.com cannot address questions except those specifically about content and services we provide.