Terms of Service

Last Updated: October 9, 2008

Thank you for using Ning, Inc. (“Ning”, “we” or “us”)! Ning provides a software platform (the “Ning Platform”) that enables you to create, join or browse Social Networks (as defined below) built on the Ning Platform. We also provide a set of services that will enhance your experience as a member of Social Networks on the Ning Platform.

These Terms of Service contain general terms that apply to you as a user of the Ning Platform, along with additional terms that may apply to you as a Network Creator (as defined below) if you decide to create your own Social Network. When using the Ning Platform, you will also be subject to the Ning Privacy Policy and additional posted guidelines, policies or rules applicable to specific services and features on the Ning Platform, which may be posted by us from time to time (collectively, the “Guidelines”). All of these Guidelines are part of this Agreement and are hereby incorporated by reference. Additionally, if you are developing products using Ning’s application programming interfaces (“APIs”), or have otherwise signed up for a developer account (thereby becoming a “Third Party Application Developer”), you will also be subject to the Ning Application Developer Terms. If you are adding third party widgets and applications (“Third Party Applications”) or adding custom code not provided by or endorsed by Ning (“Non-Ning Code”) to your Social Networks or adding applications that may be developed or contributed by Ning (“Ning Applications”) to either your Social Network or a third party web site, you will also be subject to the Ning Applications Terms. The Ning Application Developer Terms and Ning Applications Terms are hereby incorporated by reference. We strongly recommend that, as you read these Terms of Service, you also access and read the linked information.

These Terms of Service, including any Guidelines and future modifications (collectively the “Terms of Service” or “Agreement”) govern your use of the Ning Platform and is a legal contract between you and Ning.

By registering with us or using or browsing the Ning Platform, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, you can stop using the Ning Platform at any time.

The Ning Platform is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the Ning Platform. Any person who provides their personal information through the Ning Platform represents to us that they are 13 years of age or older.

You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using or creating a Social Network on the Ning Platform as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms “you” and “your” in this Agreement refers to your company or legal entity.

Quick Reference:

1. Definitions

“Content” means (i) any work of authorship in a Social Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages and tags added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Social Network or the Ning Platform. “Your Content” is any Content that you submit to a Social Network or the Ning Platform, either as a Ning Member, Network Member or Network Creator (all as defined below). If you are a Network Creator, Your Content includes the name, logo, trademark, brand features and other Content that you (and not the Network Members of Your Network(s) make available). Content does not include Network Code or Platform Code.

“Embeddable Widget” means any embeddable application provided and hosted by Ning that allows for the viewing or playing of audio, photos, video, text and other material on third party websites or services, including the Ning Network Badge, Ning Member Badge, Photo Slideshow and Ning Videos.

“Initial Network Code” means the Network Code (as defined below) that is initially provided by Ning that may be used and modified by you or other Members of the Ning Platform. For clarity, Initial Network Code does not include Platform Code (as defined below). “Derivative Network Code” means a derivative work of the Initial Network Code, created by you through code access on the Ning Platform or otherwise.

“Members” means both Network Members and Ning Members.

“Networks” or “Social Networks” consist of Network Code and other Content and are web applications running on top of the Ning Platform. Social Networks are created by Network Creators and are provided for Network Members of that Social Network to interact and connect with other Network Members. Social Network features may include Network Member profiles, friends, invitations, discussion forums, photo sharing, video sharing, music and podcast sharing, events, latest activity streams, RSS feeds, pages, ratings, reviews, and recommendations, among others. If you are a Network Creator, “Your Network” is a Social Network created and operated by you on the Ning Platform.

“Network Code” means the software code (i.e., HTML, Javascript, or PHP code) used to provide the functionality for a Social Network that is interpreted by the Platform Code (as defined below) and delivered to a User’s computer through a web browser. Network Code consists of Initial Network Code, and may also consist of Your Code (as defined below), as applicable, but expressly excludes Platform Code.

“Network Creator” is a Ning Member who creates and operates one or more Social Networks on the Ning Platform. A Network Creator is by definition a Network Member of each of his or her Networks.

“Network Members” are Ning Members who have also registered with a particular Social Network on the Ning Platform using their Ning ID. “Your Network Members” are Network Members who have registered with Your Network.

“Network Member Data” means data provided by or collected from a Network Member by a Network Creator for a particular Social Network, such as profile data, including certain items of registration information (e.g. email addresses), answers to Social Network profile questions, forum posts, and statistical information about Content contributed. Network Member Data does not include the Ning ID or any Ning Member Data.

“Ning ID” is an account you create with Ning which includes a name, email address, date of birth and password. When you register as a Network Member on one or more Social Networks on the Ning Platform, you use the email address and password portion of your Ning ID to authenticate with each such Social Network. Additionally, each Social Network of which you become a Network Member will have access to your date of birth, email address and name as stored in your Ning ID and this information will be pre-populated into both Your Ning Profile (as defined below) and Your My Profile (as defined below) upon sign-up.

“Ning Members” are Users who complete a registration process with Ning and obtain a Ning ID. Ning Members may also (but are not required to) become Network Members.

“Ning Member Data” is data collected from Users by Ning, including the data collected for the Ning ID and any data provided in Your Ning Profile (as defined below). Ning Member Data does not include Network Member Data.

“Ning Member Services” are the services provided by Ning to Network Members. Ning Member Services include, but aren’t limited to: Network Member registration, Network Member sign in and authentication, a message center, friends, contact management (including the ability to import contacts from third-party email services), and a set of Network membership management services, including a listing of the Social Networks to which a particular Network Member belongs and management of friends across those Social Networks. Ning Member Services do not include any services that Network Creators provide to their Network Members.

“Ning Network Creator Services” are the services Ning provides to Network Creators. Ning Network Creator Services include, but aren’t limited to: a Network Creator’s own Social Network application and access to its Network Code; Network Member registration and authentication services; Network Member account management; secure PHP sandbox for development; Social Network management and security applications; internal and external APIs; Javascript-compatible markup APIs; URL command line APIs for auto-generation of pages; a semi-structured content store; and Social Network display, management, and search services. Certain basic Ning Network Creator Services are provided free of charge when you create a Social Network on the Ning Platform.

“Ning Profile” means information that, if you are a Ning Member, you have provided to Ning that is aggregated by Ning into a master profile. Your Ning Profile is separate from any profile that you create on a particular Social Network (“My Profile”) and enables you to keep track of friends and messages across all Social Networks. “Your Ning Profile” is a Ning Profile created by you on the Ning Platform.

“Ning Technology” means the past, present and future content of the Ning Platform, including all software in any format (including the Platform Code and the Initial Network Code), Embeddable Widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectible elements of the Ning Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the Ning Platform and the Ning Platform itself, including, the selection, sequence, and “look and feel” and arrangement of items on the Ning Platform, and all Ning Marks (as defined below), domain names, patents, and other intellectual property. Ning Technology does not include Your Content or Your Code.

“Third Party Software” means software that is licensed to you by third parties, including software that is subject to so-called “open source” licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.

“Platform Code” means the proprietary portion of the Ning Platform that is used to interpret the Network Code and other services available on the Ning Platform.

“Premium Services” are services provided by Ning to Network Creators for a fee.

“Your Code” means any script, code, or other computer software uploaded by you to the Ning Platform, including any Derivative Network Code.

“Users” are all end users of the Ning Platform, and include you, any unregistered users, all Ning Members, all Network Members, all Network Creators and all Third Party Application Developers.

2. Benefits of Creating Your Own Social Network

The Ning Platform is designed to give Network Creators and Network Members the freedom to create and control their own Social Networks. Creating Social Networks on the Ning Platform is free. A Social Network initially comes with 10GB of storage and 100GB of bandwidth; although such storage and bandwidth limits may be changed from time to time. We also make available the Initial Network Code for a Network under the Apache 2.0 license, subject to third party licenses as further stated below in “Third Party License Requirements”. Subject to this Agreement, as a Network Creator, you control your Social Network and own all of Your Code and Your Content. Ning does not claim any ownership rights in Your Code or any of Your Content. There are two types of data provided by or collected from Network Members – Network Member Data and Ning Member Data. Network Creators and their designated administrators have access to both the Network Member Data uploaded or collected on their Social Network(s) and the Ning Member Data.

3. Premium Services and Payment

Premium Services

There are two primary ways that we support the Ning Platform: through advertising and Premium Services. As a Network Creator, you can purchase one or more Premium Services from us. The categories and prices of our Premium Services are described here and are subject to change from time to time (“Premium Services Policies”). Ning may choose to temporarily change the fees for the Premium Services for promotional or new services, and such changes are immediately effective when Ning posts the temporary promotional event or new service on the Ning Platform. Any changes to fees for Premium Services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the Ning Platform. The changes shall only apply prospectively to the Premium Services you’ve purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.

Payment Generally

You are responsible for paying all fees and applicable taxes associated with the Premium Services in a timely manner with a valid payment method. You authorize Ning to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein “Payment Method”) for all charges to your accounts with Ning. Your Payment Method will be charged the current fee for the Premium Service you choose on the date that you click on the “Purchase” button in the ordering process. Today, we only offer recurring payments. You agree that Ning may automatically charge the fee to your Payment Method at the beginning of each recurring period. For example, if you choose a Premium Service with a monthly plan, you will be billed every month on the anniversary date of the date you clicked the “Purchase” button. Additionally, we may offer a pre-pay payment option for payment of Premium Services (“Pre-Payment Plan”). If you opt for Pre-Payment plan, your Payment Method will be charged the then-current fee for that Premium Service at the commencement of each renewal period.

You acknowledge and agree that any credit card and related billing and payment information that you provide to Ning may be shared by Ning with companies who work on Ning’s behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Ning and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. You agree to pay Ning all charges incurred under your account for any Premium Service in which you or anyone else who uses your account (including children, family and friends) enroll in accordance with this Agreement and any applicable Premium Services policies. If your Payment Method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand, (b) Ning may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) Ning reserves the right to either suspend or terminate your Premium Services or your account with Ning, including deletion of your Social Network from the Ning Platform.

Except as may be set forth in applicable Premium Service Policies or Section 27 (Termination), any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to Your account in writing to Ning within sixty (60) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of Ning.

Taxes

You are responsible for paying any governmental taxes imposed on your use of the Ning Platform, including, but not limited to, sales, use, or value added taxes. If requested, you will promptly furnish to Ning the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that Ning is obligated to collect such taxes, the applicable tax will be added to your billing account.

4. Your Code and Licenses to Your Code

You own Your Code. Ning does not claim any ownership rights in Your Code. After posting Your Code, you continue to have the right to use and license Your Code in any way you choose (and you are responsible for protecting those rights as appropriate), subject to any notice or license requirements set forth in the Apache License, Version 2.0 or as otherwise described in the Third Party License Requirements section below for any Derivative Network Code you create. You may upload Your Code to the Ning Platform, for use in Your Network, provided Your Code complies with the terms of this Agreement. At any point, you can take Your Code from Your Network and cancel your account and Ning shall not retain any license rights, except as provided below.

You hereby grant Ning a non-exclusive, worldwide, perpetual, transferable, irrevocable, sublicenseable, royalty-free right and license to access, use, reproduce, store, modify, distribute, publicly display, publicly perform and create derivative works of Your Code (a) for the purpose of operating and making Your Network available on the Ning Platform and in all current and future media in which the Ning Platform may now or hereafter be distributed or transmitted; or (b) for our internal business purposes. Additionally, you hereby grant Ning a non-exclusive, world-wide, transferable, irrevocable, sublicenseable royalty-free right and license to continue using, reproducing, archiving, caching, creating derivative works, publicly displaying and performing in perpetuity, any of Your Code that is incorporated into the Ning Platform, provided that Ning shall not use or distribute Your Code on a stand alone basis. The foregoing license does not limit Ning’s rights under any third party or open source license in which Your Code is licensed.

You are responsible for making sure that you have all rights in Your Code you upload or use and all rights that are necessary for you to grant the foregoing licenses to Your Code. You are solely responsible for ensuring that Your Code is compatible with any Ning Technology. Ning disclaims any liability or responsibility for any unauthorized use of Your Code by third parties or Users of Your Network and is not responsible for protecting Your Code.

5. Your Content and Licenses to Your Content

Ning does not claim any ownership rights in Your Content. After posting Your Content, you continue to retain ownership of Your Content, and you continue to have the right to use and license Your Content in any way you choose. The Content that you upload to any Social Network needs to comply with the terms of this Agreement. At any point, you can take Your Content from Your Network and cancel your account and Ning does not retain any license rights except as provided below.

You hereby grant Ning, during the course of your usage of the Ning Platform, a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Your Content (a) for the sole purpose of operating and making Your Content available on the Ning Platform and in all current and future media in which the Ning Platform may now or hereafter be distributed or transmitted or (b) for our internal business purposes; and (ii) disclose metrics regarding Your Content on an aggregated basis for advertising, marketing and business development purposes. If you wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. Without limiting the foregoing, Ning reserves the right to retain copies of Content for archival purposes after termination of the Agreement.

You hereby agree that if Your Content is removed from any Social Network due to a violation of these Terms, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, Ning shall have the right to use, reproduce and exploit Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of Ning, any individual, or the general public.

You are responsible for making sure that you have all rights in Your Content, including the rights necessary for you to grant the foregoing licenses to Your Content. You are solely responsible for Your Content. You understand that whether or not Your Content is published or marked private by you, Ning does not guarantee any confidentiality or privacy with respect to any of Your Content. You agree not to include any advertising in any of Your Content unless you purchase the Premium Service to run your own advertising on Your Network.

Additionally, you understand and agree that Your Content that is displayed on the Ning Platform may continue to appear on the Ning Platform, even after you have terminated your Ning Member or Network Member account or terminated these Terms of Service, as portions of Your Content may have been incorporated into Member profiles, RSS feeds or other features.

In addition to the rights, licenses and privileges referred to above, you agree that Ning, in its sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the Ning Platform, and any products, goods, features, capabilities and/or services associated with the Ning Platform.

As a Network Creator or Network Member you acknowledge that Ning and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any Network or the Ning Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.

If a Network is removed from the Ning Platform, the Content associated with that Network may also be deleted at the discretion of the Network Creator or Ning. We encourage you to be sure you are comfortable with this possibility before contributing Your Content to a Network. You should be aware that Ning is not required and may not keep back-up copies of Content (including Your Content) on the Ning Platform once the Network or Content is deleted. Additionally, Ning makes no guarantee, either during or after the term of this Agreement, that Your Content will be safely stored on the Ning Platform and you should independently back-up Your Content.

6. Licenses From Ning

License to Initial Network Code

During and subject to the terms and conditions of this Agreement (including the Third Party License Requirements below), Ning makes the Initial Network Code available under the license requirements set forth in the Apache License, Version 2.0.

In addition, should you choose to cancel your account and take Your Network and Your Code with you, you will continue to have a license (under the Apache License, Version 2.0, or as otherwise applicable as described in the Third Party License Requirements section, below) to any Initial Network Code you were given access to by Ning prior to your cancellation.

Third Party License Requirements

The Initial Network Code may be distributed with Third Party Software. You acknowledge that certain components of the Initial Network Code may be covered by licenses governing the use of Third Party Software. Please review the licenses contained in each file of the Initial Network Code for the license terms of applicable Third Party Software licenses. Copyrights to the Third Party Software are held by the copyright holders indicated in the copyright notices in the corresponding files. To the extent required by the licenses covering Third Party Software, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software, such restrictions will not apply to such Third Party Software.

License to Ning Platform

During and subject to the terms and conditions of this Agreement, Ning hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to access and use the Ning Platform solely to enable your use of the Ning Member Services and Ning Network Creator Services.

You agree that all the intellectual property rights in the Ning Platform, which does not include Your Content and Your Code, are owned by Ning.

License to Embeddable Widgets

During and subject to the terms and conditions of this Agreement, Ning hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to incorporate Embeddable Widgets into other third party websites or your own personal websites. The foregoing license shall terminate immediately upon expiration or termination of this Agreement or removal of Your Social Network from the Ning Platform by Ning or you and you agree to immediately stop using such Embeddable Widget.

License Restrictions

Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:

• Run, rent, lease, loan, or sell access to the Ning Platform or the Ning Technology.
• Decompile or reverse engineer or attempt to access the source code of the software underlying the Ning Platform or Ning Technology.
• Copy, archive, store, reproduce, rearrange, modify, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any Ning Technology.
• Access the Ning Platform to build a product using similar ideas, features, functions, interface or graphics of the Ning Platform.
• Circumvent, disable or otherwise interfere with security related features of the Embeddable Widget or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Embeddable Widget or the Content and Third Party Content therein.
• Access the Ning Platform to upload Your Code or Your Content to cause a breach of security to the Ning Platform or any Social Network or interfere with the proper working of the Ning Platform or prevent others from using the Ning Platform.

7. Independent Development; Feedback

You agree that Ning may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing Ning from creating or fully exploiting such software, content and other items, without any obligation to you.

You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to the Ning Platform, Your Network or the Initial Network Code, including, on the Ning blog, Network Creators Forum or on the Ning Open Social Directory (“Feedback”). If you elect to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant Ning a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and otherwise exploit Feedback.

8. Ning Trademarks and Legal Notices

Ning trademarks, logos, images, service marks, trade names and other distinctive branding features used on the Ning Platform “Ning Marks” are the trademarks of Ning and may not be used without permission. Ning is not granting you a license under any intellectual property right to the Ning Marks. Other trademarks, logos, and trade names that may appear on the Ning Platform are the property of their respective owners.

If you are a Network Creator, Ning reserves the right to include within Your Network applicable Ning copyright and trademark notices for the Ning Platform and links to the Ning Terms of Service, Privacy Policy and other Guidelines. All notices and links will be displayed consistently in such form and placement as determined by Ning.

9. Ning Ownership Rights

You agree that, as between you and Ning, Ning owns all right, title and interest, including, all intellectual property rights, in and to the Ning Technology. Additionally, there are two types of data provided by or collected from Network Members – Network Member Data and Ning Member Data. If you are a Network Creator or an administrator designated by a Network Creator (“Administrator”), you agree that, as between Ning and you, Ning owns all right, title and interest, including, all intellectual property rights, in and to the Ning Member Data. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in this Agreement. Any rights not expressly granted herein, are reserved to Ning. You agree to abide by all copyright notices, information, or restrictions contained in any part of the Ning Platform. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the Ning Platform, including notices on any Ning Technology you download, transmit, display, print or reproduce from or using the Ning Platform.

10. Support and Interaction for Network Creators

If you are a Network Creator, Ning provides documentation to assist you in creating and enhancing Your Network(s). You are responsible for implementing and maintaining all support for Your Network(s), including answering questions from Your Network Members. This includes, if you’ve customized the Network Code yourself (including creating Derivative Network Code) fixing bugs that Network Members might find and tell you about.

11. Advertising and Promotion for Network Creators

On free Social Networks, we have the exclusive right to sell, run and/or serve third-party advertising on your Social Network. If you are a Network Creator, you agree not to include any advertising for anything other than Your Network, including ads served via an ad-server service like Google AdSense, in any Network, Network Code, or Content you provide on Ning. If you pay the Premium Service fees to run your own ads, however, you may include third-party advertisements or sponsorships on Your Network. If you run your own ads, Ning will have the option, which we may exercise on notice to you, to offer and display, in partnership with you, all or some of such advertisements on Your Network. Ning may establish general policies and guidelines surrounding the running of your own ads (“Advertising Policies”). Any such Advertising Policies are part of this Agreement and are subject to change from time to time.

YOU AGREE THAT NING WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR NETWORK.

If you are a Network Creator, Ning reserves the right to include promotional links on Your Network(s) at no cost to Ning, unless you pay the applicable Premium Service fees to remove promotional links. Removal of promotional links does not include removal of required Ning legal notices and links to Ning Terms of Service, Privacy Policy and Guidelines or any statement indicating that Ning uses Ning ID for authentication upon sign in by Your Network Members.

12. Third Party Content and Hyperlinks to Third Party Sites

Content from other Members or advertisers, including, information about third party products and services and any Third Party Applications, is made available to you through Networks (“Third Party Content”) on the Ning Platform. The inclusion of Third Party Content on the Ning Platform does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and Ning has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, Ning or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any Social Network) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using the Ning Platform you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use the Ning Platform at your own risk.

Additionally, Ning or third parties may provide hyperlinks on Networks, or any other form of link or redirection of your connection to other sites (“Third Party Sites”). These Third Party Sites are in no way integrated into the Ning Platform and the inclusion of any link on a Network does not imply Ning’s affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. Ning expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through the Ning Platform. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.

13. Representations and Warranties.

You hereby represent and warrant to Ning that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of the Ning Platform including your promotional or other activities off the Ning Platform that relate to Your Network; (b) you have the right to grant to Ning the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code and Your Content; (c) Your Code and Your Content does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content or Your Network contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Ning Platform, or intercept or expropriate any system data or personal information from the Ning Platform.

14. Acceptable Use and Conduct

You are solely responsible for your conduct, Your Networks, Your Code, and Your Content on the Ning Platform. We want to keep the Social Networks on Ning safe and fun for everyone and the use of the Ning Platform for unlawful or harmful activities is not allowed. In defining “safe and fun,” you specifically agree that:

You will not post, email or make available any Content to Users or use the Ning Platform:

• In a manner that infringes, violates or misappropriates any third party’s intellectual property rights or other proprietary rights or contractual rights;
  
  
• in a manner that contains software viruses 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;
  
  
• to engage in spamming, “chain letters,” “pyramid schemes”, advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms of Service, any applicable laws, regulations or generally-accepted advertising industry guidelines, including to other Users whether on or off the Ning Platform in connection with Your Network;
  
  
• in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
  
  
• in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another’s privacy;
  
  
• in a manner that is harmful to minors in any way;
  
  
• in a manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or as otherwise objectionable, as reasonably determined by Ning;
  
  
• to impersonate a Ning employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to a Network or the Ning Platform without authorization;
  
  
• to interfere or attempt to interfere with the proper working of the Ning Platform or prevent others from using the Ning Platform, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Ning Platform, or that otherwise negatively affects other persons’ ability to use the Ning Platform;
  
  
• to use any manual or automated means, including agents, robots, scripts, or spiders, to access or manage any Network Creator’s account or to monitor or copy the Ning Platform, Initial Network Code or Platform Code or the content contained therein;
  
  
• to facilitate the unlawful distribution of copyrighted content;
  
  
• in a manner that includes personal or identifying information about another person without that person’s explicit consent;
  
  
• in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Ning Platform or to Users; and
  
  
• in a manner that constitutes or contains any form of advertising or solicitation if (1) posted in Your Content; or (2) emailed to Users who have requested not to be contacted about other services, products or commercial interests.
  
  

Additionally, you agree not to:

• “Stalk” or otherwise harass anyone;
  
  
• Collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations;
  
  
• Request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of the Ning Platform, including Ning ID passwords or any Master Key from a Network Creator, or to proxy authentication credentials for any Member of the Ning Platform for the purposes of automating logins to the Ning Platform;
  
  
• Use any profanity or the description or name of any illegal activity in the name of Your Network or the Network Subdomain (as defined below) for Your Network;
  
  
• Post any Content containing child pornography to any Social Network. Ning absolutely does not tolerate this and will report any suspected instances of child pornography, including reporting any Ning Member Data, to law enforcement, including the National Center for Missing and Exploited Children;
  
  
• Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from Social Networks and the Ning Platform - except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or “well-behaved” web services/RSS/Atom clients. We reserve the right to define what we mean by “well-behaved”;
  
  
• Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on Ning’s infrastructure;
  
  
• Attempt to gain unauthorized access to Ning’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Ning Platform;
  
  
• Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the Ning Platform or for using it for purposes unrelated to Ning); and
  
  
• Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Ning Platform.
  
  

You agree not to authorize or encourage any third party to use the Ning Platform or any of your Networks (and Your Networks will not be designed) to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify Ning in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in this Agreement. Additionally, if you are a Network Creator, you also agree not to post or permit posting of adult Content (“Adult Content”) on your Network, unless notice of such Adult Content is provided to Users first. Networks with Adult Content visible to Users who are not Network Members of such Networks with Adult Content may be shut down at Ning’s sole discretion and without notice. Ning also reserves the right at its sole discretion and option to institute additional requirements upon any Network Creator in allowing access to Network Members of its Network where Adult Content is posted.

15. Ning Platform Policies

Ning may establish general polices and limits concerning use of the Ning Platform (“Ning Platform Policies”), including (and without limitation) the maximum number of days that Social Networks and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you or Your Network(s), the maximum number of times and duration for which you may access the Ning Platform or Networks in a given period of time, the maximum bandwidth used by Your Network(s) or Content, and the maximum CPU power used by Your Networks or Content. The current Ning Platform Policies are part of this Agreement.

16. Ning’s Relationship with Users

You acknowledge that Ning may terminate your account (which is separate from a Network Creator’s right to terminate your account), and remove your Ning ID, Content and Network Member Data, as well as disable your access to any and all Social Networks and the Ning Platform, in accordance with the terms of this Agreement. If you are a Network Member, you acknowledge that nothing in any agreement (or related policies) you may be subject to with any Network Creator or other party will alter, impair, supersede, amend or otherwise affect in any way any terms of this Agreement, any Guidelines or Ning’s Privacy Policy.

17. Copyright Infringement/Digital Millennium Copyright Act Compliance

It is Ning’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). For more information, please go to Ning’s DMCA Notification Guidelines. Ning may remove any allegedly infringing Network Code or Content without any liability to you.

Ning will promptly terminate without notice any Member’s (including, for clarity, Network Member’s or Network Creator’s) access to the Ning Platform, including access to any Social Network, in appropriate circumstances where the Member is a “repeat infringer” of copyrights. Generally, Ning will consider a Member a repeat infringer if it has received more than two third-party notices of alleged infringement concerning Content or Network Code posted by that Member anywhere on the Ning Platform. Ning, however, reserves the right to identify and terminate Members under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that Member. Additionally, if a Network Creator continues to allow its Network Member’s to post Content that is subject to notices of alleged copyright infringement, the Network may (at Ning’s sole discretion) be disabled.

Additionally, if you are a Network Creator, you agree to: promptly (and in any event in no more than 24 hours) address (including removing or disabling access to the allegedly infringing content for valid DMCA take down notices) any copyright owner’s written notice (including any notices forwarded to you by Ning) that specified Content or Network Code posted on Your Network infringes that third-party’s rights (including copyrights), provided that the notice substantially complies with the requirements in the DMCA. If you receive a counter-notice from the applicable Member that substantially complies with the requirements of the DMCA instructing you to replace the allegedly infringing Content or Network Code, you agree to replace or cease disabling access to the Content or Network Code not less than ten (10) and no more than fourteen (14) days after receiving the counter notice, provided that the complaining party has not notified you that it has filed an action against the Member regarding the alleged infringement. You also agree to forward a copy of the counter notice to Ning. Ning strongly recommends that you consult with a legal professional to confirm your obligations under the DMCA. Ning is not providing legal advice to you and nothing in this Agreement is legal advice nor guarantees your compliance with applicable law or regulation. You are solely responsible and liable for complying with all applicable laws, including copyright and privacy laws in connection with Your Network.

18. Network Member Data

Through our Ning Member Services, Ning collects Ning Member Data from Your Network Members and general information about a User’s use of Your Network(s). If you are a Network Creator or Administrator, you agree that your access to this Ning Member Data (including the email addresses provided by Network Members during the Ning ID registration process ) as part of the management controls of Your Network(s) is subject to the Ning Privacy Policy. In addition, subject to this Agreement, you may collect Network Member Data from Your Social Network Members; if you do so, you hereby agree that such Network Member Data shall not be used in a manner inconsistent with, or that causes Ning to violate Ning’s Privacy Policy.

Member privacy is important to us. Therefore, if you are a Network Creator or an Administrator, you hereby agree that your use and disclosure of Network Member Data and any Ning Member Data shall: (a) comply with all Guidelines; and (b) be reasonably protective of each Network Member’s rights and in no event shall you observe standards of privacy and confidentiality in connection with the use and disclosure of Ning Member Data or Network Member Data that are less stringent than the standards set forth in the Ning Privacy Policy.

You must clearly communicate on Your Network that Your Network uses Ning ID authentication (including, on each page on Your Network on which information is collected for purposes of Ning ID authentication) and that each of Your Network Members will be sharing the data they provide to you with Ning. This is for clarity and to ensure Your Network Members are aware of this relationship.

Subject to this Agreement and each Network Member’s rights, all Network Member Data shall be the property of the applicable Network Creators. That being said, Ning needs to run Your Network on the Ning Platform. To this end, as a Network Creator, you hereby grant Ning a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicenseable, fully paid-up, royalty-free right and license to (i) use, reproduce, store, create derivative works of, distribute, publicly perform and display the Network Member Data on or through the Ning Platform and in all current and future media in which the Ning Platform may be distributed; (ii) use and disclose the Network Member Data and related metrics in an aggregate or other non-personally identifiable manner (including, for use in targeting advertising in a non-personally identifiable manner through and in connection with the Ning Platform; and (iii) use Network Member Data for other purposes permitted by the Ning Privacy Policy.

You acknowledge that Ning may receive requests from Users or persons authorized to act on behalf of such Users to modify or delete personally identifiable information relating to such Users on Your Network. Accordingly, you agree that, within 24 hours of any email request by Ning, you will: (a) delete all Network Member Data and other personally identifiable information in your possession or control relating to a particular User as specified by Ning; and (b) confirm such deletion in email notice to Ning.

Ning is not required to keep back-up copies of Network Member Data on the Ning Platform once the Network or Network Member Data is deleted. Ning makes no guarantee that Network Member Data will be safely stored on the Ning Platform. To be safe, you should independently back-up Network Member Data.

19. Your Social Network

We want to give you as a Network Creator as much freedom to create and control the Social Networks you build on the Ning Platform as possible. You may have your own agreement(s) or policies between you and each of Your Network Members, provided that each such agreement or policies do not supersede, amend or otherwise affect in any way any terms of this Agreement, any Guidelines or our Privacy Policy and provided that you allow Ning to display the Ning Terms of Service, Privacy Policy and any Guidelines on your Social Network.

To enable a great experience for all Users on the Ning Platform, if you are a Network Creator, you agree to ensure each Social Network you create or manage does not degrade the performance of the Ning Platform. If your Social Network(s) exceed the quotas and limitations set by Ning (e.g., storage or bandwidth) as set forth in the Ning Platform Policies or otherwise degrades performance of the Ning Platform or other services in any way, we may suspend your Social Network(s) at our sole discretion and without notice.

You agree not to harvest any email addresses from Networks or the Ning Platform for the purpose of sending email in violation of applicable law or otherwise violate the “Acceptable Use and Conduct” provisions of this Agreement.

You also agree not to knowingly collect any information from, or develop any Networks that are targeted at children under the age of 13.

You acknowledge that Ning may terminate the account of any Member (including Your Social Network Members) in accordance with these Terms of Service.

Your Network shall not be designed or implemented in a way that, as determined by Ning in its sole discretion, might mislead a User into believing that: (i) he or she is interacting directly with Ning when interacting with Your Network, or (ii) any of Your Network was created by or are endorsed by Ning. Because we want you to have as much freedom over your Network as possible, Ning takes no responsibility for any Content located in Your Network and Ning has no obligation to monitor such Content or Your Network.

You acknowledge that Ning also reserves the right to remove, preserve, and disclose any information or Content on any Social Network (including Ning ID and Network Member Data) or account it deems necessary or appropriate to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, (e) protect the rights, property, or safety of Ning, its Users, and the general public, or (f) investigate or defend ourselves against third-party claims or allegations.

20. Your Account

You need to register and create a Ning ID in order to become a Ning Member, Network Member or Network Creator on the Ning Platform. As a Network Creator or Administrator, you will also create a separate security password (“Master Key”). This Master Key provides you as a Network Creator or Administrators another level of security in creating and managing your Social Network(s). You are responsible for keeping both your Ning ID password and your Master Key secure. Ning IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your Ning ID. Ning reserves the right to log off or deactivate Member accounts that are inactive for an extended period of time.

When you create Your Network, Ning gives you the flexibility to choose your own subdomain for Your Network (e.g., networkcreators in the example: https://developer.ning.com/) (“Network Subdomain”). You will be solely responsible and liable for any activity that occurs under Your Network’s Subdomain. Ning maintains ownership of your Network Subdomain and grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license solely to use the Network Subdomain on the Ning Platform.

You may not use anyone else’s account, Ning ID or Network Subdomain at any time, without the permission of the account holder. You should never give out your password or Master Key to another individual or entity. Ning will not be liable for any loss that you may incur as a result of someone else using your password, Ning ID, Network Subdomain or Master Key, either with or without your knowledge. However, you may be held liable for losses incurred by Ning or another party due to someone else using your Ning ID, Network Subdomain, Master Key or password. In other words, please be careful with your identity and passwords.

21. Disclaimer of Warranties

YOUR USE OF THE NING PLATFORM, AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-NING CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE NING PLATFORM AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-NING CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NING EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. NING DISCLAIMS ANY WARRANTY THAT THE NING PLATFORM, OR ANY NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-NING CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NING PLATFORM OR THE SERVER THAT MAKES THE NING PLATFORM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NING MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE NING PLATFORM OR YOUR NETWORK (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR NETWORK OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-NING CODE WITH ANY NING TECHNOLOGY.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NING PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NING OR THROUGH OR FROM THE NING PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

22. Indemnity

You agree to indemnify, defend, and hold harmless Ning, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to:

• Your Code, Your Content or Your Network;
• Your use of any Non-Ning Code or Third Party Applications;
• Your use or misuse of, or connection to, the Ning Platform;
• Your breach or alleged breach of this Agreement;
• Your violation of any rights (including intellectual property rights) of a third party;
• Your use or misuse of any User data (including Ning Member Data and Network Member Data), including, in violation of the Ning Privacy Policy and
• Your breach or alleged breach of any agreement or policy between you and other Users.

Ning reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Ning. Ning will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

23. Your Interactions with Other Users

Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party (including any Network Member or Network Creator), Ning is under no obligation to become involved.

You release Ning, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

24. Limitation of Liability

YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL NING OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF NING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE NING PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO NING BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.

THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN NING AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE NING PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

25. Changes to Ning Platform

Ning reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Ning Platform or any part thereof with or without notice. Ning will not be liable to you or to any third party for any modification, suspension or discontinuance of the Ning Platform.

26. Amendments

We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.ning.com or elsewhere on the Ning Platform. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of the Ning Platform after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing User (including Ning Member, Network Member or Network Creator) on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.ning.com or elsewhere on the Ning Platform. The revised version will apply to you immediately if you are a User who registers or first uses the Ning Platform on or after the posting of the revised version.

27. Term and Termination

Term

This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your membership within any Network on the Ning Platform at any time and for any or no reason by following the instructions on the “My Settings” page while logged in to a Network. Additionally, you may terminate your Ning ID account and end your use of the Ning Platform at any time and for no reason by following the directions here or contacting us at info@ning.com or at the address set forth below in the “Contacting Ning” Section.

Termination

Ning has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Ning Platform or any Network, (ii) remove and discard any Network Code or Content within any Network or anywhere on the Ning Platform or (iii) shut down a Network, with or without notice, and with no liability of any kind to you.

If you terminate your account, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.

Effects of Terminating

Upon deactivating your account, this Agreement terminates and you will no longer have a right to access your account, Your Content, Your Network Member Data or Your Network(s). Ning will not have any obligation to assist you in migrating your data, Your Content, Your Network Member Data, Your Code or Your Network(s) off of the Ning Platform and Ning does not keep any back-up of any of Your Content or Your Network Member Data. Ning is not responsible for deleting Network Code or Content on your behalf. Note that, even if Network Code or Content is deleted from Ning’s active servers, it may remain in our archives (but we have no obligation to archive or back-up such Network Code or Content), and subject to the licenses set forth in this Agreement.

Survival

The following Sections will survive termination of these Terms of Service for any reason: Sections 1, 3, 4-9, 13-24, 27-32.

28. Governing Law; Venue

This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.

You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

29. Relationship of the Parties

The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that Ning has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.

30. United States Export Controls

You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from Ning under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Ning from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.

31. No Third Party Beneficiaries

The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.

32. General

The failure of Ning to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

You may not delegate your duties under this Agreement or assign this Agreement or your Ning accounts or Ning IDs, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. Ning may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties’ permitted assignees, transferees and successors.

This Agreement, which incorporates the Ning Privacy Policy and the Guidelines, constitutes the entire agreement between you and Ning and governs your use of the Ning Platform, superseding any prior agreements (whether written or oral) between you and Ning regarding the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in this Agreement.

The terms “including” and “includes” shall be deemed to be followed by the statement “without limitation” and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.

Ning may provide you with notices, including those regarding changes to this Agreement or any of Ning’s terms and conditions, by email, regular mail, or postings on the Ning Platform. Notice will be deemed given twenty-four (24) hours after email is sent, unless Ning has previously been notified that the email address is invalid. Notices not pertaining to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to the Ning Platform) are deemed given two (2) days following the initial posting.

33. Contacting Ning

You may contact Ning in the following ways:

E-Mail:

info@ning.com

Postal:

Ning, Inc.

735 Emerson Street

Palo Alto, CA 94301

We welcome your feedback on this document and thank you for using Ning!