Last updated December 11, 2015.
These terms govern your use of the Desembarco web sites or services (“Services”) referencing these Terms. By using the Services, you agree to these terms. If you entered into another agreement with us concerning the Services, then the terms of that agreement controls where it conflicts with these terms.
1. Your Agreement With Desembarco.
1.1 Choice of Law. Your relationship is with Desembarco, a United States company, and you agree to be bound by the laws of New York and the laws of the United States including but not limited to copyright law.
2. Your Content.
2.1 Ownership: You retain all rights and ownership in your content. Desembarco does not claim any ownership rights in your content.
2.2 License to Your Content. Even though we don’t claim ownership of your content, we do need certain licenses to your content in order to operate and enable the Services. When you upload or submit content to our Services, you grant Desembarco (and our parents and affiliates) a worldwide license to communicate, distribute, host, make modifications or derivative works (solely for the purpose of better showcase your products), publicly display, publicly perform, publish, reproduce, store, and use such content. The license granted by you is for the only purpose of operating, marketing, promoting, and improving our Services.
2.3 Accessing and Sharing Your Content. By submitting your content to our Services, you also give other Desembarco users the right to share your content via various social medial platforms integrated with Desembarco. We do not monitor or control what others do with your content.
2.4 Termination of License. You may terminate this license at any time by removing your content from Desembarco. However, you agree that Desembarco may retain and use copies of your content for archival or backup purposes and for the investigation purpose mentioned later.
3. Who Can Use Our Services?
3.1 Service Eligibility: You can only use our Services if you are over 18 years old, it is legal for you to use our Services, and you are legally capable of entering into a binding contract.
3.2 International Users: Pages describing the Services are accessible from around the world but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. Desembarco may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal in the country where you live. Services are not available in all languages.
4. Account Information.
You may need to create an account with us in order to use our Services. It is your responsibility to keep your log-in credentials secure and you are responsible to Desembarco for all activities that occur via your account. Unless Desembarco expressly allows you the right to create and manage account information as an account administrator for a company or as part of a team account, you may not use another person’s Account Information.
5. User Conduct.
5.2 Impersonation. If we believe that you have created an account impersonating another company or person, we may, in our sole discretion and after an internal investigation, either transfer your account to the person who you are pretending to be or terminate your account with no liability to you.
6. Use of Our Services.
6.1 Certain Services may be available only if you have paid a fee or have provided certain account information.
6.2 Unless otherwise stated in a separate agreement, we are not responsible for (a) the loss, corruption, or damage to your content, (b) the deletion or accuracy of your content, or (c) the security, privacy, or communications related to your content.
6.3 We may create limits on the use of Services, including limitation on file size and storage space. Desembarco may require you to delete your content until you are within certain storage space limits.
6.4 We may include links to websites or services that we do not operate. We have no control over and are not responsible for the content appearing on these websites or services.
7.1 Desembarco charges a fee for premium services. Any features that require payment will be noted in our marketing materials and no fees will be charged without your prior agreement. Some Services on Desembarco are free and will not incur fees.
7.2 Cancellation. You must cancel your premiums Service before it renews in order to avoid billing of the subscription fees for the next subscription period. Upon cancellation of premium Service, your premium content will be deleted or made inaccessible to you. Your content cannot be recovered once your account is cancelled.
7.3 For any upgrade or downgrade in plan level, the credit card you provided will automatically be charged the new rate on your next billing cycle. Downgrading your Service may cause the loss of features. It is your responsibility to make sure you preserve Content in your account before you downgrade.
7.4 You are responsible for paying all taxes levied in connection with your use of the Services. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, credit card fees, foreign exchange fees, etc.) which are solely your responsibility.
9.1 We don’t review all content uploaded to the Services but we may use available technologies or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
9.2 Desembarco may access or disclose information about you, or your use of a service, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) where we, in our discretion, think it is necessary to protect the rights, property or personal safety of Desembarco, our users, or the public.
10. Your Warranty and Indemnification Obligations.
10.1 You represent and warrant that you own all intellectual property rights (or have obtained all necessary permissions) to your content and have the right to grant us the license stated in Section 2.2 above.
10.2 You also represent and warrant that your content will not violate or infringe any intellectual property right or other proprietary right, including the right of publicity or privacy, of any person or entity.
10.3 You agree to indemnify and hold Desembarco and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of your content, your use of the Services, your violation of the Terms, or your violation of any rights of another.
11. Our Disclaimer of Warranties.
11.1 You acknowledge and agree that by accessing or using the Services, you may be exposed to materials from others that you may consider offensive, indecent, or otherwise objectionable, and agree to accept that risk. Views expressed on our website or through our Services do not necessarily reflect our views. We do not support or endorse certain content posted by you or other users. Certain content from others may be incorrectly labeled, rated, or categorized.
11.2 Although we do what we can to provide security measures to protect your content, we are not liable for any damages resulting from the disclosure of your content.
11.3 Disclaimer of Warranties: YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FOR EXAMPLE, WE MAKE NO WARRANTY THAT (a) THE SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; OR THAT (c) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, OR MATERIALS WILL BE CORRECTED.
12. Our Limitation of Liability.
12.1 Limitation of Liability: IN NO EVENT SHALL DESEMBARCO, AND DESEMBARCO’S LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER.
12.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.
13. Settling Disputes With Desembarco.
13.1 Any dispute you have with Desembarco must be resolved by you in a court located in Westchester County, New York, unless otherwise agreed in writing. You agree to the personal jurisdiction of the federal and state courts located in Westchester County, New York.
13.2 Disclaimer: You and Desembarco each disclaim the U.N. Convention on Contracts for the International Sale of Goods. We both agree it does not apply to the Services.
14.1 You can stop using our Services at any time.
14.2 We may add, modify, or remove features or functionalities, and we may suspend or stop a Service. We may also stop providing Services to you, or add or create new limits to our Services at any time.
14.3 Any fees that you paid prior to termination are not refundable. Termination of your account does not relieve you of any payment obligations.
14.4 If the Service is terminated or discontinued, then we will make reasonable effort to notify you and provide an opportunity to retrieve your content.
15.1 Notice to Desembarco. Unless the Terms or Additional Terms say otherwise, you must send any notices to: Desembarco LLC., 111 N. Central Ave, Suite 375, Hartsdale, NY 10530.
15.2 Notice to You: Desembarco will give notices to you either via email, regular mail, text message, postings on or within the Services, or other means reasonable for the type of notice provided.
16. Notification of Copyright Infringement.
16.1 We respect the intellectual property rights of others and we expect our users to do the same. Desembarco will respond to clear notices of copyright infringement consistent with the U.S. Digital Millennium Copyright Act (“DMCA”).
16.2 Notifying Us of Copyright Infringement: If you believe the Services are hosting content that infringes your copyright, please let us know by filling out the form that you will find here. If you would prefer to submit a notice to our Copyright Agent (address below) in writing, it must contain all of the following:
(a) A description of the copyrighted work(s) you believe are infringed;
(b) The exact location (URL) where the infringing material resides on the Service;
(c) Contact information so that we can reach you, such as email address,your physical address and telephone number;
(d) A statement by you that you have a good faith belief that the use of the Material identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(e) A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
(f) Your signature
Before you file an infringement notice, please carefully consider whether or not the use of copyrighted material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. Please also check to make sure you haven’t authorized the use at issue (for example, whether you have given a creative professional who prepared materials for your company the right to use those materials as examples of his or her past work). If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney. You may also wish to consult publicly available reference materials such as those found at the U.S. Copyright website (www.copyright.gov) or at the Chilling Effects website (www.chillingeffects.org).
16.3 If you believe access to your content was disabled or removed by Desembarco as a result of an improper copyright infringement notice, please send our Copyright Agent (contact information below) a written counter-notice that contains all of the following:
(a) A description of the work improperly removed, along with your user name and the location where that work resided on the Service;
(b) Contact information so that we can reach you, such as email address, your physical address and telephone number;
(c) A statement under penalty of perjury, signed by you, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
(d) A statement that you consent to jurisdiction of the Federal District court for the district where you reside (or of Santa Clara County, California if you reside outside of the United Sates) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person.
Before you file a counter-notice, please carefully consider whether or not your use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court decides your counter-notice misrepresented that the material was removed by mistake. If you are unsure whether use of the material at issue constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at the U.S. Copyright website (www.copyright.gov) or at the Chilling Effects website (www.chillingeffects.org).
16.4 The mailing address for the Copyright Agent is:
111 N. Central Ave
Hartsdale, NY 10530
17. About these Terms.
17.1 Export Control. The Service, and your use and handling of the Service, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Service You agree to comply with all such laws, restrictions, and regulations.
17.2 English Version. The English version of this agreement will be the version used when interpreting or construing this agreement.
17.3 Severability: If a court finds any section of the Terms or Additional Terms invalid or unenforceable, the rest of the Terms or Additional Terms still apply.
17.4 No Waiver: If we don’t enforce (or we delay enforcement) of the Terms or Additional Terms against you, we haven’t waived our enforcement rights.
17.5 Assignment or Transfer: You can’t assign or transfer your rights or obligations under this agreement to someone else without Desembarco’s written permission. We can transfer our rights and obligations to you (if we are acquired by or merge with another company, sell one of the Services, or otherwise) without your permission.
17.6 Modification. We may modify these terms to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised terms.