Terms of Use and Privacy Policy

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TERMS OF USE

(Effective January 14, 2020)

1. INTRODUCTION AND ACCEPTANCE

CRäKN, LLC and its subsidiaries and affiliated entities (“CRäKN”, “we”, “us and “our”) offers you access to its interactive online websites, applications and services. These Terms of Use, together with our Privacy Policy and any additional terms which might apply to certain products or services, govern your use of our websites (“Website”), products, or any of our mobile widgets, services or other applications (“Applications”) – together, our “Services”. Our Services include everything available through www.CRäKN.net, and all websites or other locations on which we place these Terms of Use.

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING OUR SERVICES. BY USING ANY OF OUR SERVICES (OTHER THAN TO READ THESE TERMS OF USE FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS OF USE, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN “AMENDMENT; ADDITIONAL TERMS” SECTION BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, DO NOT USE OUR SERVICES AND/OR DOWNLOAD, INSTALL, OR RUN OUR APPLICATIONS.

2. INTELLECTUAL PROPERTY

Our Services and associated content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, interfaces and interactive features included with or available through our Services and all intellectual property rights to the same, including, without limitation, all trademarks, service marks, trade names and trade dress that may appear in our Services and/or the “look and feel” of the Website and the Applications are owned by us, our licensors, our affiliates, or identified third parties (collectively, the “Service Content”), are owned by us, our licensors, or both. Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in our Services or any Service Content. Any rights not expressly granted in these Terms of Use are expressly reserved.

3. ACCOUNT REGISTRATION & PROMOTIONAL MESSAGES

(A) IN ORDER TO ACCESS OR USE SOME FEATURES OF OUR SERVICES, YOU MAY HAVE TO BECOME A REGISTERED USER. (B) If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create or we will provide a user name and password to create an “Account.” You are solely responsible for safeguarding and maintaining the confidentiality of your Account. You may not share your Account access details or authorize others to use your Account. You are responsible for all Services ordered or other activity under your Account. You agree to contact us immediately, via security@crakn.net, if you become aware of any breach of security or unauthorized use of your Account. We have the right to disable any Account, at any time in our sole discretion for any or no reason.

4. ACCESS AND USE

(A) In all instances, our Services are not being sold to you; rather, you are being granted a limited and revocable license to use our Services.

(B) Our Services generally require that you have internet or data network access. You are responsible for obtaining all such access, along with the computers, mobile devices and other equipment necessary and any software necessary to use the Services. For instance, for our Applications, you will need a mobile device that is compatible with our Application and wireless data access – data and messaging rates from your mobile carrier may apply to such uses. We do not guarantee that the Services, or any portion, will or will continue to function on or interoperate with any particular equipment, device, or software.

(C) You acknowledge that CRäKN reserves the right to discontinue the Services, in whole or in part, at any time. When using our Services, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright and privacy laws. Except as expressly permitted in these Terms of Use or as we may otherwise permit, you may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Service Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner. In certain instances, we may suggest, ask or otherwise permit you to download, install or print Service Content. In such a case, you may do so only in the manner authorized. You acknowledge that you do not acquire any ownership rights by downloading, installing or printing Service Content.

(D) In certain instances, we may provide you access to our Services for business purposes, such as entering or accessing information in connection with a license your employer has obtained from CRäKN to use our Services (“Business Use”). In these instances, you agree to: (i) use our Services solely for the Business Use; (ii) to keep strictly confidential all User Content (including any user’s Account information), Service Content, the Applications, and other CRäKN user/customer information accessed through the use of the Services, as well as any technical, financial, strategic and other proprietary and confidential information relating to our business or operations that you may access or that we may directly or indirectly provide (“Confidential Information”); (iii) not share any Confidential Information with anyone except to those employed by your employer, but only where the sharing of the Confidential Information is necessary to further the Business Purpose and only after those persons have been informed of these obligations of confidentiality and have agreed to be bound or are already bound by obligations of confidentiality at least as restrictive as those contained herein ; and (iv) not share your Account access information with any other user, including other employees of your employer.

(E) Furthermore, except as expressly permitted in these Terms of Use, you may not: (i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Service Content; (ii) circumvent, disable or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Service Content; (iii) use an automatic device (such as a robot or spider) or manual process to monitor, copy, or “scrape” the Website or Service Content for any purpose without our express written permission. Notwithstanding the foregoing, CRäKN grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. CRäKN reserves the right to revoke these exceptions either generally or in specific cases without notice; (iv) collect or harvest any personally identifiable information or non-personally identifiable information from our Services including, without limitation, user names, passwords, email addresses; (v) solicit other users to join or become members of any commercial online service or other organization without our prior written approval; (vi) use any device, software, or routine that interferes with the proper working of the Services or CRäKN’s equipment, network, and systems. (vii) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; (viii) impersonate or attempt to impersonate CRäKN, a CRäKN employee, another user, or any other person or entity (including, without limitation, by using email addresses or Accounts associated with any of the foregoing). (ix) attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same; (x) decompile, reverse engineer, or disassemble any portion of our software or other Service Content, or our Services; (xi) use network-monitoring software to monitor their availability or to determine architecture of or extract usage data from our Services; (xii) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Account (as defined below)); (xiii) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; (xiv) use the Services or Service Content for purposes that are competitive with CRäKN; and/or (xv) engage in any conduct that restricts or inhibits any other user from using or enjoying our Services. (F) You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms of Use.

(G) You understand and agree that your use of the Services and/or Service Content while operating a motor vehicle (or during any other activity that requires your attention) may be distracting, dangerous, or prohibited by law. You are solely responsible for your exercising good judgment, acting in a safe and responsible manner, and obeying all laws and regulations at all times. You understand that failing to pay full attention in the operation of a vehicle or in other activities may cause an accident, damage, injury, death, or other serious consequences. You assume sole responsibility for your use of the Services and Service Content.

5. USER CONTENT

(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.

(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.

(C) You represent, warrant, and covenant that you will not submit any User Content that:

(i) violates or infringes in any way upon the rights of others, including, but not limited to, a person’s right of publicity, privacy, or other similar right or any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity; (ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, or otherwise violates any applicable law; (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; (iv) is an advertisement for goods or services or a solicitation of funds; (v) contains a formula, instruction, or advice that could cause harm or injury; or (vi) is a chain letter of any kind.

Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.

(D) By submitting User Content to us, simultaneously with such posting you automatically grant, or represent or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (1) in connection with our business; and (2) in connection with the businesses of our affiliates, licensees, assignees, successors, parents, subsidiaries, and their related companies. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for personal, non-commercial use as permitted by the functionality of our Services and these Terms of Use. Notwithstanding the foregoing, you waive any and all claims you (or any copyright holder) may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content and, to the extent that the foregoing are incapable of being waived, hereby agree to not assert the same against CRäKN and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies.

(E) By submitting User Content, you also grant us the worldwide, perpetual, irrevocable, fully sublicensable, and transferable right, but not the obligation, to use any and all names, identities, titles, likenesses, distinctive appearances, physical likenesses, images, portraits, pictures, photographs (whether still or moving), screen personas, voices, vocal styles, statements, gestures, mannerisms, personalities, performance characteristics, biographical data, signatures, and any other indicia or imitations of identity or likeness listed, provided, referenced, or otherwise contained in the User Content (all attributes, collectively, per person, a “Persona”), including, without limitation, your name and geographical location (e.g., “A. Burson – Columbus, OH”), for any purpose, in any format, medium, or technology now known or later developed without further notice, approval, or compensation, unless prohibited by law. Our uses of your Persona will be consistent with the terms of our Privacy Policy, where it is applicable.

(F) Without limiting the generality of the foregoing, we reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising, marketing, promotional, and other commercial purposes. Without limiting the generality of the foregoing, you acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners, marketing partners, accounts, and third-party service providers (including their downstream users).

(G) We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any or no reason to edit, refuse to post, remove, or disable access to any User Content.

(A) You may not rely on any information and opinions expressed through any of our Services for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any Service Content. Use of the Service Content is at your own risk and under no circumstances will we be liable for any loss or damage caused by your reliance on any Service Content.

(B) In many instances, Service Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.

(C) Our Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.

7. INDEMNIFICATION

You agree to indemnify and hold harmless CRäKN and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies (collectively, the “CRäKN Parties”) from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your use of our Services or the Service Content; (ii) User Content provided by you or through use of your Account; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.

8. DISCLAIMER OF WARRANTIES

(A) YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES AND THE SERVICE CONTENT IS AT YOUR SOLE RISK. OUR SERVICES AND SERVICE CONTENT (INCLUDING SOFTWARE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE CRÄKN PARTIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT OUR SERVICES OR SERVICE CONTENT WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR SERVICES OR SERVICE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED OR ACCESSED THROUGH OUR SERVICES OR REFERENCED IN OUR SERVICE CONTENT; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES OR SERVICE CONTENT; (6) WARRANTIES THAT YOUR USE OF OUR SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN OUR SERVICES OR SERVICE CONTENT (INCLUDING SOFTWARE) WILL BE CORRECTED.

9. LIMITATION ON LIABILITY

(A) UNDER NO CIRCUMSTANCES SHALL ANY OF THE CRÄKN PARTIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH OUR SERVICES, THE SERVICE CONTENT, OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH OUR SERVICES INCLUDING, WITHOUT LIMITATION, SERVICE CONTENT, IS TO STOP USING OUR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF GOODS OR SERVICES RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR SERVICE CONTENT OR ANY LINKS PLACED IN OUR SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR ANY LINKS PLACED IN OUR SERVICES OR SERVICE CONTENT. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY USING OUR SERVICES.

(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF ALL OF THE CRÄKN PARTIES EXCEED THE LESSER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY CRÄKN DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR $500. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR SERVICES, SERVICE CONTENT, OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.

10. TERMINATION

(A) We reserve the right in our sole discretion and at any time to terminate or suspend your Account and/or block your use of our Services for any or no reason You agree that CRäKN is not liable to you or any third party for any termination or suspension of your Account or for blocking your use of our Services.

(B) Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Account or these Terms of Use shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, and all of the provisions under “Miscellaneous.”

(A) We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Account of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.

(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:

CRäKN LLC
1776 Mentor Ave.
Cincinnati, Ohio 45212
DMCA@Crakn.net

(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material. (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted. (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.

12. CHOICE OF LAW; JURISDICTION AND VENUE

These Terms of Use shall be construed in accordance with the laws of the State of Ohio without regard to its conflict of laws rules.

13. DISPUTE RESOLUTION; MANDATORY ARBITRATION; CLASS ACTION WAIVER; WAIVER OF JURY TRIAL

(A) Any dispute, claim or controversy among the parties arising out of or relating to these Terms of Use, the Services, Service Content or the products and services you purchase on or through any of the foregoing (“Dispute”) shall be finally resolved by and through binding arbitration in accordance with the Federal Arbitration Act to the exclusion of any other Federal, state or municipal law of arbitration. Both the foregoing agreement of the parties to arbitrate any and all Disputes, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration, shall be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction.

(B) For any Dispute, the place of arbitration shall be in Hamilton County, Ohio.

(C) The cost of the arbitration proceeding, including, without limitation, each party’s attorneys’ fees and costs, shall be borne by the unsuccessful party or, at the discretion of the arbitrators, may be prorated between the parties in such proportion as the arbitrators determine to be equitable and shall be awarded as part of the award.

(D) RESTRICTIONS ON ARBITRATION: ALL DISPUTES, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE, SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY DISPUTES YOU MAY HAVE AGAINST CRäKN, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS YOU HEREBY AGREE TO BIFURCATE AND ARBITRATE AGAINST THEM INDIVIDUALLY IN HAMILTON COUNTY, OHIO. YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. YOU AND CRäKN AGREE THAT THE ARBITRATORS HAVE NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND ARE ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN YOU AND I CRäKN, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS. FURTHER, YOU WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.

(E) THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING WAIVER OF CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION, IF CHALLENGED, ARE TO BE DETERMINED SOLELY AND EXCLUSIVELY BY THE STATE COURTS LOCATED IN HAMILTON COUNTY, OHIO OR THE FEDERAL DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF OHIO IN CINCINNATI, OHIO.

(F) WITHOUT WAIVING THE RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION 13 BE STRICKEN FROM THESE TERMS OF USE OR DEEMED OTHERWISE INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 13 (OTHER THAN THIS SENTENCE) SHALL BE STRICKEN FROM THIS AGREEMENT AND INAPPLICABLE, AND ANY AND ALL DISPUTES SHALL PROCEED IN THE STATE COURTS LOCATED IN HAMILTON COUNTY, OHIO, OR THE FEDERAL DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF OHIO IN CINCINNATI, OHIO AND BE DECIDED BY A JUDGE, SITTING WITHOUT A JURY, ACCORDING TO APPLICABLE COURT RULES AND PROCEDURES, AND NOT AS A CLASS ACTION LAWSUIT.

AMENDMENT; ADDITIONAL TERMS

(A) We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of our Services or to modify these Terms of Use. In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of our Services generally, unique of our Services, or both (“Additional Terms”). To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will control.

(B) Modifications to these Terms of Use or Additional Terms will be effective immediately upon notice, either by posting on the Website, notification by email or through any of our Applications. It is your responsibility to review the Terms of Use from time to time for any changes or Additional Terms. Your access and use of our Services following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms of Use or to any Additional Terms, immediately discontinue use of our Services and, if applicable, terminate your Account.

14. MISCELLANEOUS

(A) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. (B) Except where specifically stated otherwise, if any part of these Terms of Use is unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Use shall be stricken and that the remaining terms in the Terms of Use shall not be affected. So, for example, if a provision in these terms is found to be unenforceable, we agree an arbitrator (or, if permitted, a court) shall only strike that provision and that the remaining terms of these Terms of Use shall remain in force. (C) Where we have provided you with a translation of the English language version of these Terms of Use, our Privacy Policy or Additional Terms, you agree that the translation is provided for your convenience only and that the English version governs your relationship with us. The English language version takes precedence if there is any contradiction between the English and translated versions. (D) These Terms of Use (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between us with respect to such subject matter. (E) You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Terms of Use or any rights hereunder without your consent and without notice. 0130333.0622073 9457895.2

PRIVACY POLICY

(Effective January 14, 2020)

This website is a service of CRäKN, LLC together with its subsidiaries, affiliates, agents and licensees (collectively “we,” “us,” or “our”). We have adopted this privacy policy (“Privacy Policy”) to explain what information may be collected when you access this website (www.CRäKN.net) or any other website we place this Privacy Policy on (“Website”) or participate use any of our mobile or other applications (“Applications”), how we and others use this information, under what circumstances we may disclose the information to third parties, and the instances in which we may allow third parties to collect information directly. Depending on your activities when using or accessing our Website or Applications (collectively, “Services”), you may from time-to-time be required to agree to additional terms and conditions. For clarity, our Services include any promotion which refers to this Privacy Policy for terms regarding the collection and use of your information. This Privacy Policy and your use of the Services is also subject to our Terms of Use accessible at [Insert Link].

Please note that this Privacy Policy applies regardless of whether you use our Services via a computer, mobile device or other platform (collectively, your “Equipment”). Also, this Privacy Policy applies only to information we collect through our Services and does not apply to our collection of information from other sources (e.g., in person, over the telephone, etc.).

Modifications to this Privacy Policy

We generally keep this Privacy Policy posted on our Website and in our Applications. You should review this Privacy Policy frequently, as it may change from time to time without notice. Any changes will be effective immediately upon the posting of the revised Privacy Policy. WHEN YOU USE OUR SERVICES, YOU AGREE TO THIS PRIVACY POLICY. IF YOU DO NOT AGREE TO THIS PRIVACY POLICY, OR TO ANY CHANGES WE MAY SUBSEQUENTLY MAKE, IMMEDIATELY STOP USING OUR SERVICES.

Please note, however, that if we decide to use your personally identifiable information in a manner materially different than what is provided in this Privacy Policy or what we advised at the time it was collected, we will notify you of this change by e-mail to the last e-mail address provided to us or through our Applications. You will have a choice (by means of an “opt-in” opportunity) as to whether or not we use their information in this different manner. If you do not opt-in to such changes, we will use your personally identifiable information in accordance with the terms in place when the information was collected.

A. INFORMATION WE COLLECT

We typically collect two kinds of information about you when you use our Services: (a) information that you provide that personally identifies you; and (b) information that does not personally identify you, but that we automatically collect or that you provide us.

(1) Personally Identifiable Information: Our definition of personally identifiable information includes any information that may be used to specifically identify or contact you, such as your name, mail address, phone number, etc. As a general policy, we do not automatically collect your personally identifiable information when you visit our Website. In certain circumstances, we may request, allow or otherwise provide you an opportunity to submit your personally identifiable information in connection with a feature, program, promotion or some other aspect of our Services. For instance, you may: (a) provide your name, mail/shipping address, email address, credit card number and phone number when registering; (b) provide certain demographic information about you (e.g., age, gender, purchase preference, usage frequency, etc.) when using our Services or participating in a survey or poll; or (c) post a general comment and/or recommendation on our Website or through our Applications. Whether or not you provide this information is your choice; however, in many instances this type of information is required to participate in the particular activity, realize a benefit we may offer, or gain access to certain content or features available through our Services.

(2) Non-Personal Information: Our definition of non-personal information is any information that does not personally identify you. Non-personal information can include certain personally identifiable information that has been de-identified; that is, information that has been rendered anonymous. We obtain non-personal information about you from information that you provide us, either separately or together with your personally identifiable information. We also automatically collect certain non-personal information from you when you access our Services through your Equipment. This information can include, among other things, IP addresses, the type of browser you are using, the website you were on previously, the operating system you are using on your Equipment, the domain name of your Internet service provider (e.g., CenturyLink, Google, Cox, etc.), the search terms you use on our Website, the specific web pages you visit, and the duration of your visits. Please note, however, that in some jurisdictions, like those in the European Union, things like IP addresses or cookie and mobile device identifiers may also be considered personally identifiable information. As a result, to the extent that you are a resident of one of these jurisdictions, such as a resident of the European Economic Area (“EEA”), we may treat some of your information that would otherwise be considered non-personal information as personally identifiable information under this Privacy Policy.

Location Information: When you use our Services, particularly our Application(s), we may automatically collect certain Equipment (mobile device) specific information. This includes the general or specific location of your Equipment through GPS, Bluetooth or WiFi signals. Before we collect or send location-specific information, it is our practice to ask for your consent. In some instances, your operating system may not allow you to install an Application without giving us consent. In all instances, you may withdraw your consent by disabling location features for your Equipment – the Application will still work though certain location features (e.g., Store Locator) may not function.

B. HOW WE USE & SHARE THE INFORMATION COLLECTED

(1) Personally Identifiable Information: The personally identifiable information you submit to us is generally used to carry out your requests, respond to your inquiries, better serve you, or in other ways naturally associated with the circumstances in which you provided the information. We may also use this information to later contact you for a variety of reasons, such as customer service or, should you affirmatively consent to receive such promotional information, providing you promotional information for our products or those of our parent company, subsidiaries or other affiliated companies (“affiliated companies”), or to communicate with you about content or other information you have posted or shared with us via our Services. You may opt-out from receiving future promotional information from us or our affiliated companies, or direct that we not share your information with any affiliated companies, as set forth below.

In certain instances we may also share your personally identifiable information with third parties performing functions on our behalf (or on behalf of our affiliated companies) or accessing the Services – e.g., hotels that book guest transportation through our Services, or vendors process credit card orders, administer our promotions, provide us marketing or promotional assistance, analyze our data, assist us with customer service, etc. These third parties agree to use this information, and we share information with them, only to carry out our requests or provide Services in accordance with the terms of this Privacy Policy. In addition, with your consent, we may share your personally identifiable information with participating sponsors to a program or promotion (e.g., a sweepstakes or contest) you enter via our Services and certain co-promotional partners and others with whom we have marketing or other relationships. Except as provided in this Privacy Policy or in our Terms of Use, your personally identifiable information will not be shared or sold to any third parties without your prior approval.

(2) Non-Personally Identifiable Information: We use non-personally identifiable information in a variety of ways. For example, we may use non-personally identifiable information to evaluate use of and improve our Services (e.g., visits to our Website, use of our Applications, etc.), track purchases, gauge coupon redemption rates, understand customer needs and trends, carry out targeted promotional activities, and to improve our Services. We may use your non-personally identifiable information by itself or aggregate it with information we have obtained from other customers or other sources. We may, among other things, share your non-personally identifiable information with our affiliated companies, allow third parties to collect such information directly from you, and/or sell the non-personally identifiable information to third parties to achieve these and any other business objectives (e.g., generate revenue, form alliances, etc.). However, it is important to remember that your non-personally identifiable information (whether standing alone or combined with other non-personally identifiable information) is anonymous information that does not personally identify you.

C. CHILDREN

The Services that require the submission of personally identifiable information are not intended for children. We do not knowingly collect personally identifiable information from anyone under the age of 18. If you are less than 18 years old, please do not send any user information to us–including information such as your name, address, or e-mail address. In the event that we learn we have collected any personally identifiable information from a child under the age of 18, we will delete that information from our database and terminate the corresponding Account, if any.

D. COOKIES AND PREFERENCE-BASED ADVERTISING

(1) Cookies and Web Beacons: We automatically receive and store certain types of non-personally identifiable information whenever you interact with us. For example, like many websites, we use “cookies,” “web beacons” (also called “clear gifs” or “pixel tags”) and embedded scripts to obtain certain types of information when you use or access our Services. “Cookies” are small files that we transfer to your computer’s hard drive or your web browser memory to enable our systems to recognize your browser and to provide convenience and other features to you. “Web beacons” are tiny graphics with a unique identifier, similar in function to cookies, and may be used to track the online movements of users, when an email has been opened, and to provide other information.

Examples of the information we collect and analyze in this manner include the Internet Protocol (IP) address used to connect your Equipment to the Internet; computer and connection information such as browser type and version, operating system, and platform; your activities our Website, including the products you view or searched for, as well as the URL you come from and go to next (whether this URL is on our Website or not); and cookie number. It is important to note that the cookies and Web beacons that we use do not contain and are not tied to personally identifiable information about you.

If you are concerned about the storage and use of cookies, you may block or limit the storage of cookies via browser controls or other software (we do not make any promise that our Services will recognize or be able to work with any such browser controls/software – e.g., see below for Do Not Track options). You may also be able to delete cookies manually from your Equipment through your internet browser, operating system or other programs. Please note, however, that some portions of our Services will not function properly or be available if you are able and do block and/or delete cookies.

(2) Preference Based Advertising: We may work with third parties, including advertising companies and website analysis firms, who use cookies and web beacons to collect non-personally identifiable information when you visit our Website and third party sites. This non-personally identifiable information, collected through cookies and web beacons, is typically used by these third party advertising companies (i.e., advertising networks) to serve you with advertisements while on third party sites tailored to meet your preferences and needs. If you do not wish to participate in this activity, go to www.aboutads.info and follow the simple opt-out process.

A couple of important notes about this opt-out tool: (1) it includes all the advertising networks that we may work with, but also many that we do not work with; and (2) it may rely on cookies to ensure that a given advertising network does not collect information about you (“Opt-out Cookies”) – an explanation of how Opt-out Cookies work can be found on www.aboutads.info. Therefore, if you use different Equipment, change web browsers or delete these Opt-out Cookies from your computer, you will need to perform the opt-out task again. (3) Do Not Track Features: Certain browsers may offer you the option of providing notice to websites that you do not wish for your online activities to be tracked for preference based advertising purposes (“DNT Notice”). Some browsers are, by default, set to provide a DNT Notice, whether or not that reflects your preference. Providing DNT Notice is often touted as a means to ensure that cookies, web beacons and similar technology are not used for preference based advertising purposes – that is, to restrict the collection of non-personally identifiable information about your online activities for advertising purposes. Unfortunately, given how preference based advertising works, DNT Notices may not effectively accomplish this goal. For this and a variety of other reasons, with respect to our Website, we do not take any action based on browser based DNT Notices. Rather, if you do not wish to participate in preference based advertising activities, you should follow the simple opt-out process identified above.

E. OTHER USES & INFORMATION

(1) IP Addresses: An IP address is a number that is automatically assigned to your Equipment whenever you access the Internet. Web servers (computers that “serve up” web pages) automatically identify your Equipment by its IP address. When visitors request pages from our Website, our servers typically log their IP addresses. We collect IP addresses for purposes of system administration, to report non-personal aggregate information to others, and to track the use of our Services. IP addresses are considered non-personally identifiable information and may also be shared as provided above. It is not our practice to link IP addresses to anything personally identifiable; that is, the visitor’s session will be logged, but the visitor remains anonymous to us. However, we reserve the right to use IP addresses to identify a visitor at the request of the visitor or when we feel it is necessary to enforce compliance with our Service rules or to: (a) fulfill a government request; (b) conform with the requirements of the law or legal process; (c) protect or defend our legal rights or property, our Services, or other users; or (d) in an emergency to protect the health and safety of our customers or the general public. As discussed in Section A.(2) above, some jurisdictions may consider IP addresses as personally identifiable information. To the extent that you are a resident of one of these jurisdictions, we may treat your IP address as personally identifiable information under this Privacy Policy.

(2) Social Networks: We may offer you the ability to create or login to your account with us through accounts you may have with various social network platforms, such as Facebook or Twitter (each, a “Social Network Account”). To do so, you may be required to provide, or allow our Services to access, your Social Network Account login information. By granting us access to your Social Network Account, you understand and agree that we may access, make available and store any content that you have provided to and stored in your Social Network Account (e.g., friends, mutual friends, contacts, etc.). We may make this information available on or through our Services and to our users. You may be able to restrict what information is shared and how it is used through privacy and other settings. Also, depending on the privacy settings you have set in your Social Network Account, personally identifiable information may be shared with us and made available through our Services and to our users.

(3) Email Communications: If you send us an email with questions or comments, we may use your personally identifiable information to respond to your questions or comments, and we may save your questions or comments for future reference. For security reasons, we do not recommend that you send non-public personal information, such as passwords, social security numbers, or bank account information, to us by email. We may send you emails for a variety of reasons –e.g., emails in response to your request for a particular service or your registration for a feature that involves email communications, emails that relate to purchases you have made with us (e.g., product updates, customer support, etc.), informational emails about our other products, services, or events should you consent to receiving such informational emails, or when you consent to being contacted by email for a particular purpose. In certain instances, we may provide you with the option to set your preferences for receiving email communications from us; that is, agree to some communications but not others. You may “opt out” of receiving future commercial emails from us by clicking the “unsubscribe,” “opt-out” or similar link included at the bottom of most emails we send, or as provided below; however, we reserve the right to send you transactional emails such as customer service communications.

(4) Transfer of Assets: As we continue to develop our business, we may sell or purchase assets. If another entity acquires us or all (or substantially all) of our assets, the personally identifiable information and non-personal information we have about you will be transferred to and used by this acquiring entity, though we will take reasonable steps to ensure that your preferences are followed. Also, if any bankruptcy or reorganization proceeding is brought by or against us, all such information may be considered an asset of ours and as such may be sold or transferred to third parties.

(5) Other: Regardless of any other provision in this Privacy Policy, we reserve the right to disclose any personally identifiable or non-personally identifiable information about you if we are required to do so by law, with respect to copyright and other intellectual property infringement claims, or if we believe that such action is necessary to: (a) fulfill a government request; (b) conform with the requirements of the law or legal process; (c) protect or defend our legal rights or property of our Services, or other users; or (d) in an emergency to protect the health and safety of our customers or the general public.

(6) Your California Privacy Rights: Residents of the State of California, under certain provisions of the California Civil Code, have the right to request from companies conducting business in California a list of all third parties to which the company has disclosed certain personally identifiable information as defined under California law during the preceding year for third party direct marketing purposes. You are limited to one request per calendar year. In your request, please attest to the fact that you are a California resident and provide a current California address for our response. You may request the information in writing as provided in Section I below.

(7) Your GDPR Privacy Rights. If you are a resident of the EEA, you have certain rights and protections under applicable law regarding the processing of your personal data. The term “personal data” has the meaning given to it by the EU General Data Protection Regulation (“GDPR”). When we process your personal data, which may include both personally identifiable information and non-personally identifiable information, as described in this Privacy Policy, we will only do so when we have a legitimate interest in processing your personal data (for example, our legitimate interest in providing requested goods or services to you, responding to your inquiries and sending you marketing communications), when the processing is necessary for the performance of a contract between you and us, when the processing is necessary for compliance with a legal obligation to which we are subject, or when we have your consent to process your personal data. When processing is based on consent, you have the right to revoke such consent at any time. You also have the right to access personal data we hold about you and to ask that your personal data be corrected, erased, or transferred. You may also have the right to object to, or request that we restrict, certain processing. If you would like to exercise any of these rights, you may contact us as indicated below. If you have a concern about our processing of personal data that we are not able to resolve, you have the right to lodge a complaint with the data privacy authority where you reside. For contact details of your local Data Protection Authority, please see: https://ec.europa.eu/justice/article-29/structure/data-protection-authorities/index_en.htm .

F. PUBLIC FORUMS

We may offer chat rooms, blogs, message boards, or similar public forums where you and other users of our Services can share information and communicate – e.g., places where you can post your resume and/or profile. The protections described in this Privacy Policy do not apply when you provide information (including personal information) in connection with your use of these public forums. We may use personally identifiable and non-personal information about you to identify you with a posting in a public forum. Any information you share in a public forum is public information and may be seen or collected by anyone, including third parties that do not adhere to our Privacy Policy. We are not responsible for events arising from the distribution of any information you choose to publicly post or share through our Services.

G. KEEPING YOUR INFORMATION SECURE

We have implemented security measures we consider reasonable and appropriate to protect against the loss, misuse and alteration of the information under our control. Please be advised, however, that while we strive to protect your personally identifiable information and privacy, we cannot guarantee or warrant the security of any information you disclose or transmit to us online or through our Services, and are not responsible for the theft, destruction, or inadvertent disclosure of your personally identifiable information. In the unfortunate event that your “personally identifiable information” (as the term or similar terms are defined by any applicable law requiring notice upon a security breach) is compromised, we may notify you by e-mail (at our sole and absolute discretion) to the last e-mail address you have provided us in the most expedient time reasonable under the circumstances; provided, however, delays in notification may occur while we take necessary measures to determine the scope of the breach and restore reasonable integrity to the system as well as for the legitimate needs of law enforcement if notification would impede a criminal investigation.

H. OTHER SITES/LINKS

Our Services may link to or contain links to third party websites that we do not control or maintain, such as in connection with purchasing products we may recommend or reference via our Services and/or advertisements you may see while using our Services. We are not responsible for the privacy practices employed by any third party website. We encourage you to read the privacy statements of all third party websites before submitting any personally identifiable information through these websites.

I. CONTACT & OPT-OUT INFORMATION

You may contact us as provided below if: (a) you have questions or comments about our Privacy Policy; (b) wish to make corrections to any personally identifiable information you have provided; (c) want to opt-out from receiving future commercial correspondence, including emails, from us or our affiliated companies; or (d) wish to withdraw your consent to sharing your personally identifiable information with others.

CRäKN, LLC
1776 Mentor Ave.
Cincinnati, Ohio 45212
Email: info@crakn.net

We will respond to your request and, if applicable and appropriate, make the requested change in our active databases as soon as reasonably practicable. Please note that we may not be able to fulfill certain requests while allowing you access to certain benefits and features of our Website.

J. SOLE STATEMENT

This Privacy Policy as posted on this Website is the sole statement of our privacy policy with respect to the Services, and no summary, modification, restatement or other version thereof, or other privacy statement or policy, in any form, is valid unless we post a new or revised policy to the Website.


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