wouldn't it be cool if...

Kluster
User Terms of Use (BETA)
Date of Last Revision Feb 7, 2008

Welcome to Kluster, a web site that lets multiple users collaborate on discreet projects, which may be used for commercial development by project backers who have, or third parties who bid for, the right to commercialize the end results of a project. The Kluster web site and its associated services (the “Services”) may be found at the domain and its related subdomains found at [kluster.com] (the “Site”). The Site is owned and operated exclusively by Kluster, Inc., a Delaware corporation, and its corporate affiliates (collectively referred to herein as “Kluster”, "us", "we" or "the Company"). By creating a user account and/or accessing or using the Site or by posting any Content on the Site, whether in the form a “Spark” “Amp” or otherwise you signify that you have read, understand and agree to be bound by these User Terms of Use ("Terms of Use" or "Agreement”). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Site or the Services. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING VALUABLE INTELLECTUAL PROPERTY RIGHTS TO THIRD PARTIES FOR THEIR COMMERCIAL USE.

Basic Description of User Participation on the Site
The Site is developed and operates using a variety of specific terms and phrases, which are unique to the Site. The more commonly used terms are defined in more detail below. To summarize generally how the Site functions:

• Projects are created and may either be backed by a particular third party, or “bootstrapped” by the site’s community of users.
• Each Project may consist of one or more particular Phases.
• For each Phase, Users post “Sparks”, which are their own unique ideas or suggestions to solve or address the problem presented in that Phase.
• Other Users may modify, contribute to or make related suggestions to any Spark. These suggestions are called “Amps”.
• Users earn “Watts” through their participation on the Site. Users then may allocate their “Watts” to those Sparks and Amps that they like the best.
• Once a Phase terminates, the Site, through a proprietary algorithm owned and managed by the Company, takes each User’s allocation of Watts into consideration, and selects certain Sparks and Amps. The selected Spark is referred to as a “Graduated Spark” and selected Amps that attach to a related Spark are referred to as “Validated Amps.”
• Once all the Phases of a Project are completed, the Project terminates and any intellectual property rights associated with Graduated Sparks and their related validated Amps pass to the project sponsor in the case of backed projects or are put up for auction in the case of bootstrapped projects.

Commonly Used Terms and their Definitions
All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following Terms shall have the meaning listed below:

“Amp” is a suggestion, modification or derivative associated with a particular Spark.

“Auction Proceeds” is the cash compensation actually paid to the Company by the Winning Bidder in connection with an auction or sale of a completed “bootstrapped” Project, which the site allocates, using a proprietary and confidential algorithm, among certain Users who participate in such “bootstrapped” Project.

“Backed Project” is a Project that is initiated and sponsored by a third party that will own all Graduated Sparks, and related Validated Amps generated by User participation on the Site in connection with that Project

“Graduated Spark” is any Spark or associated Validated Amp that is selected to graduate by Users through participation on the Site.

“Intellectual Property Rights” means any Invention, writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, or similar laws.

“Inventions” includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.

“Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.

“Person” means any individual, trust or legal entity.

“Phase” is a particular segment of a Project.

“Project” is a particular project that is identified as a project on the Site and may consist of one or more Phases. Projects are either a Backed Project or a Bootstrapped Project.

“Reward” is cash reward paid by a Sponsor in connection with a Backed Project, which the Site allocates, using a proprietary and confidential algorithm, among certain Users who participate in such Backed Project.

“Bootstrapped Project” is a Project that is not sponsored by a particular third party and all Graduated Sparks generated in connection with User participation on the Site in connection with that Bootstrapped Project will be bundled and available for purchase through a bidding process.

“Spark” is an idea submitted in response to any Phase of a Project.

“Sponsor” is the Person that creates a Backed Project, obtains the Intellectual Property Rights, if any, in any Graduated Sparks and related Validated Amps generated under that Project, and is responsible for paying any Reward.

“User” is anyone that creates an account online and is registered to post Content on the Site and includes all other Persons who participate on the Site other than the Company, including without limitation Sponsors and Winning Bidders.

“User Content” includes all information that a User may transmit to the Site and which may become available for use or display, including without limitation all designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format.

“Validated Amp” is any Amp that is selected to be added to its associated Spark by Users through participation on the Site.

“Watts” are units which Users on the site earn through their continued use and involvement with Site.

“Winning Bidder” shall mean any Person that is selected by User participation on the Site, as determined by the Company’s proprietary and confidential algorithm, which is subject to change at the sole discretion of the Company, as the Winning Bidder of a Bootstrapped Auction and the Winning Bidder obtains the Intellectual Property Rights, if any, in any Graduated Sparks and related Validated Amps generated under that Bootstrapped Project, and is responsible for paying any Auction Proceeds.

Kluster Control of the Site and Services
You acknowledge that Kluster is a service provider that has created the Site to allow Users to interact via the Site regarding topics and content chosen by Users, and that Users can alter the information presented on the Site on a real-time basis. Kluster generally does not regulate the content of communications between Users or Users' interactions with the Service. As a result, Kluster has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of Content provided by Users.

Other Parties Rights in Content
You acknowledge that: (i) by using the Site you will have access to Content provided by other Users, and (ii) Content may be provided under license by independent content providers, including contributions from other Users. The Company does not pre-screen Content submitted by Users to the Site. You acknowledge that the Company and other Users have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Service or posting on the Site. You accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that your creation or submission of any Content is not in any way based upon any expectation of compensation from the Company or any other Users, including Sponsors and/or Winning Bidders.

"Watts" are Limited License Rights allocated to Users at the Company’s Sole and Absolute Discretion. You acknowledge that the Service presently includes a component of fictional currency referred to as Watts, which constitutes a limited license right to influence User based decisions on the Site. Kluster may distribute or allocate Watts among new and existing Users, at its sole and absolute discretion. Regardless of terminology used in the Site or otherwise, Watts represent a limited license right governed solely under the terms of this Agreement, and are not redeemable for any sum of money or monetary value from Kluster or any other Person, at any time. You agree that Kluster has the absolute right to manage, regulate, control, modify and/or eliminate Watts, collectively or individually, as it sees fit in its sole discretion, in any general or specific case, and that Kluster will have no liability to you based on its exercise of such right. Each User acknowledges and agrees that Rewards, Auction Proceeds and any other actual monetary amounts that may be allocated to a User, may or may not be based in whole or in part on the amount of Watts invested.

Monetary Compensation and Payment Obligations.
The Site has been created to facilitate community based product and idea development. Users should not participate on the Site or in the Service primarily for financial gain, as any actual monetary compensation actually received by a User in connection with the Site, may or may not bear any relation to the actual time invested on the Site, or the quality or quantity of Content submitted, or Watts owned, spent or otherwise utilized. Because all Rewards and Auction Proceeds are allocated among Users pursuant to a mathematical algorithm, which utilizes many different variables and which may be changed at anytime at the sole discretion of the Company with or without notice, there can be no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Site or providing Content even if you participate or provide Content in connection with a Backed Project that has a stated Reward or a Bootstrapped Project that is subsequently sold. Kluster makes no representations or warranties regarding any actual monetary compensation that may be earned in connection with use of the Site or the Service. Kluster’s obligation to pay to Rewards and Auction Proceeds to Users, who are allocated such amounts pursuant to the Site, is limited to paying Rewards and Auction Proceeds that are actually received by Kluster. Notwithstanding any Rewards or Auction Proceeds that may be allocated to your account, Kluster shall be under no obligation distribute such amount to you until such time as the aggregate amount payable in your account exceeds $100. Furthermore, notwithstanding anything to the contrary contained herein, Kluster reserves the right to distribute any amounts that may become payable to you as a User hereunder in monthly installments of amounts not less than $200. Any amounts due to you shall not accrue interest. Payments may be made pursuant to a written check, wire, paypal (or other similar online payment device), debit or prepaid credit card, or other commercially reasonable method selected at the sole discretion of Kluster. You acknowledge and agree that you be responsible for all taxes due on any payments made to you in connection with your participation on the Site. The Company will be under no obligation to make any payments to you unless you have properly completed the information required in your User the registration process related to backup withholding taxes. On an annual basis, Kluster reserves the right to reset all User accounts below $100 to $0 and to write off all such unpaid amounts and Kluster shall have no liability for any such write-offs. Kluster also reserves the right to withhold or forfeit payments due to any User that has breached this Agreement or any of the other guidelines related to use of the Site.

Service Interruptions and Site Changes.
Kluster reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Kluster will not be liable for any interruption of the Site, delay or failure to perform. Kluster has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site and/or the Service as it sees fit in its sole discretion.

Fees.
Certain aspects of the Service are provided for a fee or other charge, including creating a Backed Project or bidding on a Bootstrapped Project. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Service, you agree to the pricing, payment and billing policies applicable to such fees and charges, posted or linked at [insert link]. Kluster may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion.

Eligibility
Participation in the Site is void where prohibited. This Site is intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Site by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Service or the Site, you represent and warrant that you are 18 or older, and that you agree to and to abide by all of the terms and conditions of this Agreement.

Registration Data; Account Security
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content; Limited License
All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its Users or other licensors, with all rights reserved. No Site Content may be modified, copied, distributed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except that the foregoing does not apply to User Content (as defined below) it is legally posted on the Site, which is addressed in more detail in the section below titled “Ownership of User Content.” Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your own personal use, in connection with participating on the Site, during the duration of an active Phase for which such Site Content was originally posted. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise. This license is revocable at any time by the Company without notice and with or without cause.

Ownership of User Content.
All Content legally posted to the site by Users, that is in compliance with this Agreement and other guidelines that may be posted by the Company from time to time shall referred to as “User Content.”

The Company and each User that is a party to this Agreement acknowledges and agrees that, subject to the terms and conditions of this Agreement, Users may retain any and all applicable copyright and other Intellectual Property Rights with respect to any User Content that you create or submit using the Service, to the extent you have such rights under applicable law.

Notwithstanding the foregoing, you understand and agree that by submitting User Content to any area of the Site, you automatically grant (and you represent and warrant that you have the right to grant) to the Company: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to use, reproduce and distribute your User Content within the Service, as permitted by you through your interactions on the Service, (b) the perpetual and irrevocable right to delete any or all of your User Content from the our servers and from the Site, for any reason or no reason, whether intentional or unintentional, and, without any liability of any kind to you or any other party; and (c) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your User Content as the Company may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the Service. Further, you agree to grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth below, including the incorporation by reference of terms posted at [insert link].

You also understand and agree that by submitting your User Content to any area of the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to the Company and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your User Content, to use your User Content for all purposes within the Service. You further agree that you will not make any claims against the Company or against other Users of the Service based on any allegations that any activities by either of the foregoing within the Site infringe your (or anyone else's) Intellectual Property Rights.

In connection with any Backed Project, to the extent that you submit Content in connection with that Backed Project and your Content is incorporated or made part of any Graduated Spark (including a Validated Amp associated with that Graduated Spark) included in that Project, you hereby assign, and agree to deliver such additional assignments or other instruments of transfer as may be reasonably requested by the Company or the Sponsor of such Backed Project, to the Sponsor, all of your right, title and interest in such Content, including without limitation all Intellectual Property Rights. You further agree that you will not make any claims against the Company or the Sponsor based on any allegations that any activities by the Sponsor infringe your (or anyone else's) Intellectual Property Rights in such Content. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever and the Sponsor shall have the right to enforce all Intellectual Property Rights in such Content against you and any subsequent use by you of such Content. You further acknowledge and agree that any compensation that you might receive as a result of submitting such Content and its inclusion in a Graduated Spark, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting Content on the Site. The provisions of this Section may be specifically enforced by either the Company or the Sponsor of the applicable Backed Project, and any such Sponsor is intended to be a third party beneficiary of this provision.

In connection with any Bootstrapped Project, to the extent that you submit Content in connection with that Project and your Content is incorporated or made part of any Graduated Spark (including a Validated Amp associated with that Graduated Spark) included in such Project and such Project is auctioned to a Winning Bidder as provided for on the Site, you hereby assign, and agree to deliver such additional assignments or other instruments of transfer as may be reasonably requested by the Company or the Winning Bidder of such Bootstrapped Project, to the Winning Bidder, all of your right, title and interest in such Content, including without limitation all Intellectual Property Rights. You further agree that you will not make any claims against the Company or the Winning Bidder based on any allegations that any activities by the Winning Bidder infringe your (or anyone else's) Intellectual Property Rights. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever and the Winning Bidder shall have the right to enforce all Intellectual Property Rights in such Content against you and any subsequent use by you of such Content. You further acknowledge and agree that any compensation that you might receive as a result of submitting such Content and its inclusion in a Graduated Spark, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting Content on the Site. The provisions of this Section may be specifically enforced by either the Company or any Winning Bidder, and the Winning Bidder of the applicable Bootstrapped Project is intended to be a third party beneficiary of this provision.

You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Site, including without limitation any legal consequences relating to your or any other Person’s Intellectual Property Rights or Proprietary Information; and (iii) Kluster’s acknowledgement hereunder of your Intellectual Property Rights in your User Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company’s intention not to require Users of to forego certain Intellectual Property Rights with respect to Content they submit to the Site, subject to the terms of this Agreement, including without limitation each User’s agreement to assign all right, title and interest in Content that is included in Graduated Spark as provided herein.

Kluster retains ownership of User account data, regardless of any Intellectual Property Rights in User Content. You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to User Content that is submitted on the Site. You do not own the account you use to access the Site, nor do you own any data Kluster stores on its servers (including without limitation any data representing or embodying any or all of your User Content). Your Intellectual Property Rights in any User Content, if any, do not confer any rights of access to the Site, the Service or any rights to data stored by or on behalf of the Company.

Trademarks
“WOULDN’T IT BE COOL IF…”, “KLUSTER” and other Kluster graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Kluster in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Kluster and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

Conduct by Users; Prohibited Conduct
You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any person or entity without their consent, including, but not limited to, a Kluster employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content as determined by Kluster at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Site any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or upload, post, email or otherwise transmit to or via the Site any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (ix) attempt to gain access to any other User’s account or password; or (x) "stalk", abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the Site or the Services; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Site or any of its algorithms that are utilized to allocate Watts, or select Graduated Sparks or Validated Amps. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any amounts otherwise due to you from the Company.

Copyright Infringement Complaints
We respect the intellectual property rights of others and we prohibit Users from uploading, posting or otherwise transmitting on the Site or via the Service any materials that violate another party's Intellectual Property Rights or that constitutes another Person’s Proprietary Information. Any infringing materials posted by any User can be identified and removed pursuant to Kluster’s Digital Millennium Copyright Act (the “DMCA”) compliance process listed at [INSERT Link], and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Kluster has adopted a policy of terminating, in appropriate circumstances and at Kluster’s sole discretion, Users who are deemed to be repeat infringers. Kluster may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights or who disclose Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise are or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.

Monitoring User Content
Kluster is not responsible or liable in any manner for any User Content posted on the Site or in connection with the Service. Although we provide rules for user conduct and postings, we do not control and are not responsible for what Users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content. The Company is not responsible for the conduct, whether online or offline, of any User of the Site or Service.

Disputes Between Users
As a condition of access to the Site and the Service, you release Kluster (and Kluster’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the Site; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any User Content that you may provide. You further understand and agree that: (a) Kluster will have the right but not the obligation to resolve disputes between Users relating to the Service, and Kluster’s resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Kluster elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Service and will not make judgments regarding legal issues or claims; (c) Kluster’s resolution of such disputes will be final with respect to the Site and any allocation of Watts, the graduation of Sparks, the validation of Amps or the allocation of any payments due to Users related to the foregoing, but will have no bearing on any real-world legal disputes in which Users of the Service may become involved; and (d) you hereby release Kluster (and Kluster’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Kluster’s resolution of disputes relating to the Site or the Service.

All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer
When using the Site or the Service, you may accumulate Content, Watts, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON KLUSTER’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN KLUSTER’S SOLE DISCRETION. Notwithstanding the foregoing, the Company will maintain back-up records related to any actual accumulated unpaid cash amounts earned by Users, and to the extent such information is deleted or otherwise altered, the Company will use its best efforts to accurately recreate such information to satisfy its payment obligations.

YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO CONTENT YOU POST ON THE SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, KLUSTER DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY’S SERVERS.

YOU UNDERSTAND AND AGREE THAT KLUSTER HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH ANY LIABILITY OF ANY KIND.

All Services are Provided "as is" Without Express or Implied Warranties.
KLUSTER PROVIDES THE SITE, THE SERVICE, YOUR ACCOUNT AND ALL RELATED GOOD AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Service, the Site or your account, and you understand that you shall not be entitled to make any claim based on Kluster’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.

Kluster’s liability to you is expressly limited, to the extent allowable under applicable law.
IN NO EVENT SHALL KLUSTER OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE OR THE SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL KLUSTER’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).

Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Kluster cannot be held responsible or liable for anything that occurs or results from accessing the Site or participating in the Service.

Indemnification.
You hereby agree to defend, indemnify and hold harmless Kluster, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, Sponsors, Winning Bidders and other users of the Service, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of this Agreement by you, or from your use of the Service. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, Sponsors and Winning Bidders from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any claims by third parties that your activity on the Site or Content infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information. All Sponsors and Winning Bidders are intended to be third party beneficiaries of this provision, and may pursue any claims against Users for indemnification hereunder to the extent that any User transfers Intellectual Property Rights to such parties hereunder.

Privacy Policy
The personal information you provide to us during registration is used for the Company’s internal purposes only. Kluster uses the information it collects to learn what you like and to improve the Service. Kluster will not give any of your personal information to any third party without your express approval except: as reasonably necessary to fulfill your service request, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect the Company, its agents and other users of the Service. Kluster does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Kluster can (and you authorize Kluster to) disclose any information about you to private entities, law enforcement agencies or government officials, as Kluster, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Kluster may communicate with you via email and any similar technology for any purpose relating to the Site. You agree to read the disclosures and be bound by the terms of the additional Privacy Policy information posted on our website at [insert link]. You acknowledge and agree that Kluster, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Service. The Company may share general, demographic, or aggregated information with third parties about our user base and Site usage, but that information will not include or be linked to any personal information without your consent.

Dispute Resolution; Governing Law; Venue and Jurisdiction
By visiting or using the Site and/or the Service, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of Vermont, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Vermont.

YOU AND THE COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SITE AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's Intellectual Property Rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Service (including your visit to or use of the Site and/or the Service) be instituted more than three (3) years after the cause of action arose.

General Provisions
The Site and the Service is controlled and operated by Kluster from its offices within the State of Vermont, United States of America. The Company makes no representation that any aspect of the Service is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Service and its use.

The Company’s failure to act with respect to a breach by you or others does not waive Kluster’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Kluster under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Kluster’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Site and/or the Service in a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Kluster shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Kluster.

This Agreement sets forth the entire understanding and agreement between you and Kluster with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

Kluster may give notice to you by means of a general notice on our website at [insert link], by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement shall be mailed to us at: [insert].