Effective Date: July 2, 2008
Last Updated: July 2, 2008
Revisions to this Policy
The information which the Company collects through the Blog may include personally identifiable information (“Personal Information”) which refers to information that helps it identify users or viewers of the Blog (collectively, “Users” and each a “User”). The Personal Information includes data such as a User’s name, street address, phone number, facsimile number, email address, username and password. The Blog allows Users to submit Personal Information in order to contact or communicate with the Company. If User contacts the Company through this Blog, please note that Personal Information may be maintained by the Blog. Users are responsible for keeping all Personal Information current and may change any previously entered information through the Blog in the manner set forth below.
The Blog may also collect data that cannot be traced back to a specific individual (“Anonymous Information”). For example, the Company may be able to keep count of how many Users have viewed the Blog and specific content therein, or key words utilized to find the Blog, but this information does not necessarily include information regarding Users’ names, street addresses, phone numbers or email addresses. Users who view the Blog but do not enter their Personal Information are generally anonymous Users. Only Anonymous Information and no Personal Information will be intentionally collected by the Company from anonymous Users. The Blog may use browser cookies to collect Anonymous Information. The Blog may also incorporate web beacons or similar tracking technologies to allow the Company to track how the Blog is used. Such technologies are used to collect Anonymous Information, e.g. the name of the User’s internet service provider, the IP address of the User’s computer, User’s browser software and operating system, the identity of any linked-form or linked-to website and other similar information. The Company may combine a User’s Anonymous Information with similar information collected from other Users to help improve the Blog and services.
The Blog is hosted by TypePad.com. Ple/ase contact Typepad.com for information about their policy regarding the collection and retention of User information. Company does not know TypePad’s policies in this regard and makes no representations or warranties regarding TypePad’s use or collection of information about Users. Submitting information via the Internet may not be secure and/or confidential. Users should refrain from sending attorney-client privileged information through the Blog without prior approval from the Company to do so and should thereafter take into account that the Company cannot guarantee that such information will be secure, due to its means of transmission.
Third Party Advertisers and Links to Third Party Websites.
The Company undertakes reasonable efforts to operate secure data networks which are protected by industry standard firewall and password protection systems. The Company undertakes reasonable efforts to review its security and privacy policies on a periodic basis and it may adjust and change the systems as necessary. Notwithstanding the above, and although the Company is ever diligent in its security pursuits, it cannot guarantee the success of its efforts.
It is the Company’s policy to not use or share the Personal Information about the Users of the Blog in ways which have not been outlined or described herein without first allowing its Users a chance to opt out or otherwise disallow such unrelated uses. However, the Company may disclose Personal Information about its Users or information relating to their Use of the Blog for any reason if, in its sole discretion, it determines that it is reasonable to do so, including:
A. To comply with laws, such as the Electronic Communications Privacy Act, regulations or governmental or legal requests for such information;
B. To reveal information that is needed to identify, contact or bring legal action against any User who may be violating the terms and conditions of the Blog;
C. To operate the Blog properly;
D. To protect the Blog and its Users; and/or
E. To fully cooperate with law enforcement authorities, private-party litigants and others seeking information about its Users to the extent required by applicable law.
Managing and Deleting Users’ Personal Information
If a User would like to modify or delete any personal information previously entered on the Blog, he can update his information by sending an email with his current and updated information to email@example.com.
Protection of Children
The Company does not knowingly collect or use any personal information from children (minors younger than 13) through the Blog. If the User is a parent and believes the Company may have inadvertently collected such information from User’s child, please notify the Company immediately by sending an email to firstname.lastname@example.org.
Corporate Transfers of Information
Nissenbaum Law Group, LLC (the “Company”), offers the Use (as defined below) of www.franchiselawinfoblog.com(“Blog”), subject to the following terms and conditions (“Terms and Conditions”). The viewer or user (collectively, the “User”) should read these Terms and Conditions carefully before using the Blog. By continuing to view and use the Blog, the User agrees to these Terms and Conditions. If the User does not agree to the Terms and Conditions set forth herein or otherwise on the Blog, the User must not use it. The Company retains the right to change the content of the Blog or these Terms and Conditions at any time. Any changes made to these Terms and Conditions shall be effective immediately upon posting. The User’s continued Use of the Blog constitutes acceptance of those changes.
The situating of the Blog on the World Wide Web and/or Internet constitutes a continuing offer by the Company to the User to Use, as such term is defined below, the Blog according to the Terms and Conditions. By utilizing the Blog in any manner, including, without limitation, by viewing the same (collectively, a “Use”), the User accepts that offer and creates a binding contract between the two parties to adhere to the same. The parties stipulate that sufficient consideration exists to create that contract, and that it is therefore binding upon them. Further, by his Use of the Blog, the User makes the material representation upon which he wishes the Company to reasonably rely that he will adhere to the Terms and Conditions in connection with the User’s Use of the Blog. If the User is dissatisfied with any of the Terms and Conditions, the User’s sole and exclusive remedy is to discontinue using the Blog. Finally, by his Use of the Blog, the User also stipulates that a violation of any of the Terms and Conditions will result in irreparable harm to the Company not compensable in money damages, such that, without limitation, injunctive relief shall be a necessary and appropriate remedy.
The Blog contains images and contents, including but not limited to images, photographs, text, software, pictures, graphics, video clips, audio clips, digital downloads, data, messages or any and all other information controlled by the Blog (collectively, “Materials”).
This Blog contains general information about the Company for clients, potential clients and other Internet users. Nothing contained on this Blog shall constitute legal advice nor be construed as a representation to be reasonably relied upon. In no event shall anything on the Blog be construed either to create a duty of care or to constitute a representation by the Company of any sort to be relied upon by the User in any manner whatsoever. An attorney-client relationship is not created unless and until a formal retainer agreement is signed between the User and the Company. An attorney-client relationship is not created as a result of the Use of the website, including but not limited to contacting the Company by email, phone, facsimile or otherwise. The Company takes no responsibility for information sent to it intercepted by third-parties. User understands that while the Company endeavors to maintain the confidentiality of these communications, communication via Internet, cell phone and other modalities are vulnerable to interception and may not be fully secure. By sending such communication, User assumes the risk of the same. User should not rely on the information contained on the Blog and should always formally engage legal counsel to obtain legal advice for User’s specific situation. As further set forth herein, the Company takes no responsibility for the information contained on any website or blog to which this Blog may be linked, as the same is completely independent of this Blog.
Moreover, the statements and opinions expressed by the authors of this Blog are those of the authors and do not necessarily reflect those of the Company.
Access to Blog – Limited License. The Blog and the content provided therein, including without limitation, the Materials and other text, graphics, button icons, audio clips, video clips, digital downloads, photographs, biographical information, data compilations and software, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of the Company. Moreover, the User shall not to download (other than page caching) or modify any portion of the Blog without the Company’s prior written approval. Notwithstanding the foregoing, the Company grants the User a limited non-exclusive license to make personal, non-commercial use of the Blog. The User is also granted a limited license to print copies of any Materials posted on the Blog, but only for the User’s personal, non-commercial use. Except as expressly provided, all rights are reserved. The Company may terminate this license at any time by amendment of these Terms and Conditions.
Moreover, and notwithstanding the foregoing, if User exercises his rights under the above-referenced license, he must retain all copyright and trademark notices, including any other proprietary notices, contained in the Materials. User shall not, under any circumstances, alter, obscure or obliterate any of such notices. The use of such Materials or any portion of the Blog on any other website or in any environment of networked computers is strictly prohibited without the Company’s advance written consent, which may be withheld in Company’s sole discretion.
User Conduct. By utilizing the Blog, the User makes the material representation upon which the User wishes the Company to reasonably rely, that he will comply with the code of conduct set forth below:
(a) The User, when utilizing the Blog, will not do so in an unauthorized manner, or in a manner which violates any legal or regulatory proscription or duty, including, without limitation, violating the Company’s intellectual property or that of another;
(b) The User will not utilize the Blog in a manner that is harmful to the Company or any other person or entity;
(c) The User will not utilize any information that the User gained as a result of using the Blog to illegally or improperly violate another person’s or entity’s privacy rights.
(d) The User shall not utilize any of the Company’s trademarks as metatags on other websites or otherwise use the Company’s trademarks for User’s own advertising or pecuniary gain, including without limitation utilization as Google® AdWords;
(e) The User shall not utilize the Blog in regard to any commercial activities, advertising or sales without the prior written consent of the Company, which may be unreasonably withheld;
(f) The User shall not use any robot, spider or other intelligent agent software or device to access or monitor the Blog in any manner;
(g) The User will not transmit any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, indecent, obscene, pornographic or otherwise objectionable;
(h) The User shall not access the Blog more than ten (10) times a day;
(i) The User will not restrict any other user from properly using the Blog, including without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Blog and its underlying programs;
(j) The User will not imply that any of his statements are endorsed by the Company, or that User is otherwise associated with the Company in any manner;
(k) The User will not use the Blog if the User is not able to form legally binding contracts or has been temporarily or indefinitely suspended from the Blog;
(l) The User will not transmit any material, non-public information about any person or entity without the proper authorization to do so;
(m) The User will not transmit any advertisements, solicitations or any unsolicited communication without the Company’s express permission to do so;
(n) The User will not cover or obscure any advertisements located within or Blog;
(o) The User will not revise, modify, reverse engineer or in any way alter any portion of the Blog or its contents or underlying technology;
(p) The User will not “frame” or “mirror” any part of the Blog;
(q) The User will not utilize any device to enable him to circumvent the structure of the Blog and/or spam or flood the site;
(r) The User will not collect any information about visitors to the Blog without the Company’s express permission to do so;
(s) The User shall not deliver, or provide links to any postings without the prior written permission of the Company, including, without limitation, to any materials which are deemed, in the Company’s sole discretion to be harmful, lewd, obscene, violent, insulting, threatening, hateful or otherwise objectionable;
(t) The User shall not impersonate any other person and/or falsely state or otherwise misrepresent that he has an affiliation with any other person or entity, or otherwise mislead, deceive or defraud the Company or any other party; and
(u) The User will not create a database utilizing any information found within the Blog.
Moreover, the User hereby makes the material representation upon which he wishes the Company to reasonably rely that: (i) he is at least 13 years of age; (ii) he is a resident of the United States; and (iii) he is authorized to provide information to the Company through the Blog and/or subscribe to the Blog.
Copyrights; Restrictions On Use. The Materials on the Blog are copyrighted by the Company, its affiliates or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by the Company, its affiliates or its licensors. The Materials may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of the Company and its applicable licensors, with the sole exception that User may print copies of the Materials for User’s personal, noncommercial use. User must abide by all copyright notices, information or restrictions contained in or attached to any Material. User agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Blog, including, without limitation, any of the Materials or access to the Blog.
Copyright Infringement. It is the policy of the Company to respond expeditiously to claims of copyright infringement. The Company will promptly process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act and other applicable intellectual property laws. The Company may elect to terminate access for any User who it believes in its sole discretion to be an infringer, regardless of whether proven or not.
User covenants and agrees to provide the Company with any information that User has regarding potential copyright infringement of any of the Materials. The sole and exclusive protocol for notifying Company that such copyrighted work has been infringed upon is to provide written notice to Company in accordance with the Notices provision hereunder. That notice must include (i) the signature of a person authorized to act on behalf of the owner of the copyright interest (“Copyright Owner”); (ii) a description of the copyrighted work that is believed to have been infringed upon; (iii) a description of where the alleged infringing work is located on the Blog; (iv) the Copyright Owner’s mailing address, telephone number and email address; (v) a statement by the Copyright Owner that it has a good-faith belief that the disputed use is not authorized by the Copyright Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the work; and (vi) a statement by the Copyright Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Copyright Owner or is authorized to act on the Copyright Owner’s behalf. Such information should be immediately delivered to the Company by certified mail return receipt requested or by commercial carrier at the addresses set forth below in the “Notices” provision and directed to the attention of the “Copyright Agent.”
“Nissenbaum Law Group” and variations thereof, as well as certain other of the names, logos and materials displayed on the Blog constitute trademarks, tradenames, service marks or logos (“Marks”) of the Company or other related entities. User is not authorized to use any such Marks or any variations thereof. Ownership of all such Marks and the goodwill associated therewith remains with the Company or other related entities.
Any communications, including, without limitation, emails, pictures, audio clips, videos, graphics and/or other material sent directly, or by carbon copy or otherwise to the Company or any of its officers, employees or agents and any postings to the Blog shall become the Company’s property upon the transmission of the same. User grants the perpetual and irrevocable right to both publicly or non-publicly utilize the same, including the identifying information contained therein, in any manner whatsoever, at no charge.
All notices or other communications to the Company, if any, that are to be given under these Terms and Conditions must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier. Notices to the Company shall be deemed given only upon receipt. Notices to the Company may also be given by electronic mail, provided that it is followed by an exact copy by either regular mail, personal delivery, certified mail, return receipt requested or two-day mail or overnight mail by a commercial carrier to the same addresses set forth above. Such notice shall be deemed effective twenty four (24) hours after the message was sent, if no “system error” message or other notice of non-delivery is generated. Notices to the Company shall be addressed as set forth below unless it changes the address in writing by updating these Terms and Conditions. The address for giving notice to the Company is as follows:
Attn: Gary D. Nissenbaum, Esq. Nissenbaum Law Group, LLC 2400 Morris Avenue, 3rd Floor Union, New Jersey 07083 gdn@gdnlaw
Notices to User shall be provided by the Company via email or any other address which the Company reasonably believes to be associated with the User, if known. Notice shall be deemed effective upon delivery of the same by the Company.
The User agrees to indemnify, hold harmless and defend the Company, its affiliates, and any members, directors, officers, employees or agents (collectively, “Company Parties”) of any of the foregoing with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of Company’s selected attorneys, arising from any third-party claim relating to (i) User’s infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by the User to comply with these Terms and Conditions, specifically including the “User Conduct” as set forth above; (iii) the User’s Use of the Blog; and/or (iv) any act or omission or willful misconduct on the part of the User that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties.
If Company or any of the Company Parties undertake any action to enforce these Terms and Conditions, such party will be entitled to recover from the User, and User hereby agrees to pay, any and all attorneys’ fees and any cost of litigation, in addition to any other relief at law or in equity to which such party may be entitled. In such event, the Company shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.
User explicitly agrees that Use of the Blog or any of the Materials contained herein is at his own and sole risk. The Blog and all Materials contained therein are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Neither the Blog nor the Company makes any representations or warranties that the Blog or any Materials contained therein will be uninterrupted, timely, secure or error free; nor does the Blog make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Blog or any of the Materials contained herein. The User also understands and agrees that any material and/or data downloaded or otherwise obtained through the Use of the Blog or any of the Materials contained herein is done at his own discretion and risk and that the User will be solely responsible for any damage to his computer system or loss of data that results from the download of such material and/or data. The User understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. The Company makes no warranty regarding any use of confidential or private information that User may provide. The Company may change any of the Terms and Conditions and/or information found on the Blog at any time without notice. The Company makes no commitment to update the information found on the Blog. The Company makes no commitment to update the Materials. The warranties and representations set forth in these Terms and Conditions are the only warranties and representations with respect to these Terms and Conditions, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the elimination of certain warranties, so some of the above exclusions may not apply to the User.
Further, Company is not responsible for the conduct of other Users, whether online or offline. Under no circumstances shall the Company be responsible for any loss or damage, including, without limitation personal injury or death, resulting from the use of the Blog or the conduct of any other Users, whether online or offline. The Use of the Blog is “AS-IS” and the Company, as set forth above, expressly disclaims any and all warranties.
Limitation of Liability.
COMPANY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT USER’S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF ITS ACCESS TO, USE OF OR BROWSING IN THE BLOG OR HIS DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE BLOG. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF THIS BLOG OR CONTENT FOUND HEREIN, (II) ANY FAILURE, DELAY OR INABILITY TO USE ANY COMPONENT OF THIS BLOG, OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY COMPANY, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.
If, notwithstanding the foregoing, Company should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of the Blog, or any Materials, Company’s liability shall in no event exceed, in the aggregate, US$100.00. In its sole discretion, in addition to any other rights or remedies available to Company and without any liability whatsoever, Company at any time and without notice may terminate or restrict Users’ access to any component of the Blog. Some states do not allow limitation of liability, so the foregoing limitation may not apply to the User.
User acknowledges and agrees that the representations and obligations of the User hereunder shall survive and continue in perpetuity.
BY UTILIZING THE BLOG, USER HEREBY RELEASES, REMISES AND FOREVER DISCHARGES AND GIVES UP ANY AND ALL CLAIMS AND RIGHTS WHICH IT MAY HAVE AGAINST THE COMPANY AND ITS AFFILLIATES, PARTNERS, SERVICE PROVIDERS, VENDORS AND CONTRACTORS AND EACH OF THEIR RESPECTIVE AGENTS, ATTORNEYS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES BASED ON ANY ACT, EVENT OR OMISSION, AND FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE BLOG AND SERVICES RELATED THERETO. USER FURTHER WAIVES, RELEASES AND GIVES UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION. THIS INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARTIES POLICIES, PRACTICES OR PROCEDURES; AND/OR (III) ANY FEDERAL AND/OR STATE STATUTES OR REGULATIONS.
Successors and Assigns.
Whenever the term “the Company” is used in connection with these Terms and Conditions, and in accordance with the other modes and methods set forth in the other webpages of the Blog regarding its use in regard to a right, protection or benefit, it shall be construed to encompass the Company, its related entities, successors, assigns, directors, officers, employees and agents. Further, the term “User” used in connection with these Terms and Conditions shall include his/her/its heirs, related entities, successors, assigns, directors, officers, employees and agents.
Authorized Permission for Use.
The User shall be considered an entity if the individual accessing the Blog is doing so on behalf of an entity or is utilizing that entity’s computer system in connection with a task (either paid or unpaid) for that entity. If the User is an entity, the person using the Blog on its behalf hereby makes the material representation upon which he wishes the Company to rely that he is authorized to bind that entity to the Terms and Conditions set forth above, as well as any other obligations imposed or undertaken through Use of the Blog. The Company reserves the right to terminate the User’s access to, and use of, whether as an individual or entity, the Blog and any of its contents, including, without limitation, the Materials, or use of any of the Company’s services at its sole discretion and without any advance notice to the User.
A party to these Terms and Conditions may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related or collateral to these Terms and Conditions. All such claims or disputes, whether between or among the parties, shall be submitted to arbitration administered by a mutually acceptable arbitrator affiliated with the American Arbitration Association and its rules and guidelines shall apply, or its International Centre for Dispute Resolution, if applicable. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court. Should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. The arbitration proceedings shall be in English. The arbitrator shall have the authority to award any remedy or relief that a court of the State of New Jersey could order or grant. Each party will perform all acts, including the execution and delivery of further documents, as the arbitrator deems necessary or desirable to confirm and carry out the terms of the award rendered. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. The award rendered by the arbitrator in any arbitration is final and binding on the parties. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
However, notwithstanding the foregoing, either prior to, during or after the arbitration process, any Party to these Terms and Conditions may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of this Release; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes and/or to enforce a settlement or award of such arbitration; and/or (e) for any other equitable relief.
The User utilizing the Blog agrees that the laws of the State of New Jersey shall govern these terms and conditions and any dispute, controversy or claim directly or indirectly related to such Use. Further, the User consents to the jurisdiction of the Supreme Court of the State of New Jersey or, if federal jurisdiction exists, at the option of either party, to the jurisdiction of the United States District Court for the District of New Jersey, Newark Vicinage, to seek injunctive relief, compel an arbitration and/or enforce an arbitrator’s award. Any arbitration shall be conducted in Union County, New Jersey. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of the User’s current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of New Jersey. The User agrees that regardless of any statute or law to the contrary, any claim or cause of action by User arising out of or related to use of the Blog or services related thereto must be filed within one (1) year after such claim or cause of action arose or be forever barred and therefore the statute of limitations is limited to one (1) year.
The User covenants and agrees to perform further all acts and execute all supplementary instruments or documents which may be requested by the Company to carry out the provisions and effectuate the intent of these Terms and Conditions.
Company may freely assign its rights and obligations in and to these Terms and Conditions. The User acknowledges that it may not assign, transfer or sell its rights under these Terms and Conditions without Company’s express written consent, which may be unreasonably withheld. Any purported assignment without Company’s consent shall be deemed null and void.
If any portion of these Terms and Conditions is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion shall be construed as narrowly as possible in order to give effect to as much of the Terms and Conditions as possible.
Links to Other Sites.
The User acknowledges and agrees that the Company has no responsibility for the accuracy or availability of information provided by websites to which a User may link from the Blog (“Linked Sites”). Links to Linked Sites are provided as a convenience to the User, and do not constitute an endorsement by or association with the Company of such sites or the content, products, advertising or other materials presented on such sites. The Company does not author, edit or monitor these Linked Sites. User acknowledges and agrees that the Company is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites. If User accesses a Linked Site, he does so at his own risk.
No Third Party Beneficiaries.
These Terms and Conditions are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third-party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms and Conditions or otherwise set forth in the Blog, except as may be specifically provided herein. These Terms and Conditions shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms herein. No third party shall have any right, independent of any right that exists irrespective of these Terms and Conditions, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.
Prohibited by Law.
In the event that any aspect of the Blog or these Terms and Conditions is prohibited by law in User’s jurisdiction, User agrees not to Use the Blog. It is solely User’s responsibility to determine whether it is allowed by law to participate in the Blog. Without limitation, the User releases Company from all liability that could arise from User’s prohibited participation in the Blog or acceptance of these Terms and Conditions. Moreover, and without limiting the indemnification otherwise provided herein, User shall indemnify, defend and hold Company and all Company Parties harmless for any and all damages relating to a violation of this paragraph.
In light of the international scope of the Internet, User agrees to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content. Without limitation, User acknowledges and agrees that it shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which the User may reside.
By his Use of the Blog, the User represents that he has had the opportunity to review these Terms and Conditions with counsel of the User’s choosing, if the User wished to do so. The User further acknowledges that he has thoroughly read these Terms and Conditions; understands that he is giving up certain legal rights that may otherwise exist; has asked any questions he desires to clarify its meaning; and believes it is in his interest to nevertheless proceed with to utilize the Blog.
Please read the following disclaimer which applies to all of the material found on this website:
Nothing contained on this Blog should be construed to create a duty of care, nor to constitute legal advice nor be construed as a representation to be reasonably relied upon. No representations or warranties are made with regard to the accuracy or content of any information contained on any website to which this one may be linked or otherwise refers. Further, none of the material contained herein should be interpreted to state or imply a comparison with the capabilities of any other lawyer or law firm. We take no responsibility for the information contained on any website to which this one may be linked, if any, as the same is completely independent of our own. Neither Nissenbaum Law Group, L.L.C., nor its attorney(s), should be deemed to be retained as counsel unless and until a formal retainer agreement is signed or a retainer letter is received by the prospective client.
ATTORNEY ADVERTISING: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © 2008 by NISSENBAUM LAW GROUP, LLC. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.
Please click here to watch a brief video about the Nissenbaum Law Group:
In 2006, the law firm of Kalow & Springnut, LLP (“Kalow”) brought a class action lawsuit against software developer Commence Corporation (“Commence”) to recover damages sustained due to the failure of Commence’s computer software. Kalow & Springnut, LLP v. Commence Corp., No. 07-3442, 2009 WL 44748 (D.N.J. 2009).
Seven years prior, Kalow purchased software from Commence for use in its law practice. After that software failed, Kalow filed a class action lawsuit against Commence on behalf of purchasers of Commence’s software. Kalow alleged violations of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §1030 (for Commence’s intentional transmission of a software code causing damage to Kalow’s computer systems); violations of the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. §56:8-2, (for Commence’s deceptive and misleading practices in marketing its software); and violations of various consumer fraud acts in every state where Commence did business in anticipation of class certification.
The CFAA provides sanctions and punishments for any person “who knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct intentionally causes damage without authorization, to a protected computer.” 18 U.S.C. §1030(a)(5)(A)(I). In its pleadings, Kalow alleged that, “because computer software does not ‘wear out or fail like a mechanical device … for software to stop working, it must either have been intentionally designed to stop working, or the environment in which it is operating must have been altered, either as a result of the change in other software running on the same computer, or as a result of a change in the computer itself.’” Id. at *2. Kalow further alleged that it had not altered its computer system immediately before the software stopped working, so the software must have been intentionally designed to stop working by way of a “time-bomb” in the software. Id. The court held these allegations sufficient to state a claim under the CFAA and denied Commence’s motion to dismiss Kalow’s claim under that Act.
The Court then turned to the NJCFA claim. It held that to state such a claim, Kalow had to allege: 1) unlawful conduct by Commence; 2) an ascertainable loss by Kalow; and 3) a causal relationship between Commence’s unlawful conduct and Kalow’s ascertainable loss. Under the NJCFA “when the alleged consumer fraud consists of an omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element of the fraud.” Id. at *3. Kalow alleged that Commence “designed its software to fail on a predetermined date, concealed that it had designed the software to fail on that date, that the software did fail on that date, and when the software failed it proximately caused Kalow and the class members to be injured.” Id. at *4. The court held these allegations sufficient to allege a causal relationship between Commence’s knowing omission of the inclusion of a “time-bomb” in its software and Kalow’s ascertainable loss because Kalow asserted it would not have purchased Commence’s software if it was aware it contained a “time-bomb.” As a result, the court denied Commence’s motion to dismiss Kalow’s NJCFA claim.
The court dismissed Kalow’s other claims, which were brought under the consumer fraud acts of other states. The court reasoned that it could not conclude that the elements of consumer fraud in those other states mirrored the elements required to establish consumer fraud in New Jersey. Kalow also did not allege facts establishing that other consumers made claims under any other state statute. In conclusion, Kalow was permitted to proceed to trial on its claims that Commence violated the CFAA and the NJCFA.
© 2011 Nissenbaum Law Group, LLC