Terms & Conditions
Arsenic, Inc. Terms and Conditions
Effective Date: July 16, 2016
IMPORTANT — THIS AGREEMENT (“AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) ("YOU" or "YOUR") AND ARSENIC, INC. (HEREINAFTER "ARSENIC," "WE", "US" OR “OUR”) THAT sets forth the legal terms and conditions for your use of www.ARSENICMAG.com and any other website owned and operated by arsenic (the "Website(s)") and ANY Arsenic services, including any ARSENIC SOCIAL NETWORKING ACCOUNTS, ARSENIC mobile applications (the "APP(s)"), or other services offered by arsenic from time to time and other services offered through third parties THAT integratE WITH Arsenic functionality (collectively, "Service(s)").
1. Agreement. BY USING ANY WEBSITES OR USING ANY SERVICES FROM ARSENIC, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ARBITRATION AGREEMENT in section 14 below.
Some of our services MAY have additional RULES, POLICIES, AND PROCEDURES ("Additional Terms"). Where Additional Terms apply, we will make them available for you to read through IN CONNECTION WITH your use of that service. By using that service, you agree to the Additional Terms.
WE RESERVE THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR TO MODIFY OR DISCONTINUE THE SERVICES OFFERED BY ARSENIC AT ANY TIME. If we change this Agreement, we will give you notice by posting the revised Agreement on the APPLICABLE Website(s) OR APP(S). Those changes will go into effect on the EFFECTIVE Date shown in the revised Agreement. IF WE MAKE ANY MATERIAL CHANGES, WE WILL ALSO NOTIFY YOU BY SENDING YOU AN EMAIL TO THE LAST EMAIL ADDRESS YOU PROVIDED TO US (IF ANY) AND WE MAY REQUIRE YOU TO PROVIDE CONSENT TO THE UPDATED AGREEMENT BEFORE FURTHER USE OF THE SERVICES IS PERMITTED.
BY CONTINUING TO USE ANY WEBSITES OR SERVICES AFTER the NEW EFFECTIVE date, YOU AGREE TO BE BOUND BY SUCH CHANGES.
2. Eligibility. If requested, you agree to provide us with complete, current and accurate contact and other information. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under 18, you may only use our Websites and Apps with the supervision of a parent or guardian 18 years of age or older.
3. Acceptable Use. You are responsible for your use of the Websites and Services, and for any use of the Websites and Services made using your account (if any). Our goal is to create a positive and safe experience in connection with our Websites and Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Arsenic, as will be determined by Arsenic in its sole discretion. By way of example, when you use the Websites and Services, you may not:
· violate any law or regulation;
· violate, infringe, or misappropriate other people's intellectual property, privacy, publicity, or other legal rights;
· post or share anything that is illegal, abusive, harassing, harmful to reputation, obscene, hateful, racist, or otherwise objectionable;
· send unsolicited or unauthorized advertising or commercial communications, such as spam (additionally, please read our Anti-Spam Policy in Section 9 below);
· transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
· stalk, harass, or harm another individual;
· impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
· use any means to scrape or crawl any Web pages or content contained in the Websites or Apps (although Arsenic may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Arsenic reserves the right to revoke these exceptions either generally or in specific cases);
· use automated methods to use the Websites or Apps;
· attempt to circumvent any technological measure implemented by Arsenic or any of Arsenic's providers or any other third party (including another user) to protect the Websites or Apps;
· attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps; or
· advocate, encourage, or assist any third party in doing any of the foregoing.
If we make available and you elect to download the App, the following also applies: Arsenic grants you a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use, subject at all times to this Agreement, including the restrictions on use, the acceptable use provisions and our right to remove Your Content (as defined below) at our discretion at any time. Furthermore, with respect to any App accessed through or downloaded from an App Store such as the Android Market or Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on a product that runs the operating system for which it was intended and (ii) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 15.
4. Ownership & Copyright Restrictions. The Websites and Apps are owned and operated by Arsenic. The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole ("Content"), are copyrighted under U.S. copyright and other laws by Arsenic or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any author attributions, legal or proprietary notices in the Websites, Apps or elsewhere.
Except as noted in Section 5 below and for your rights in Your Content (as defined in Section 6): (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored, modified, or otherwise, or in any way exploited for personal gain; (2) you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps; and (3) you may not make commercial use of any webpage or Services provided by Arsenic, including redistribution or copying by means; EXCEPT with the prior, express written permission of Arsenic.
You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Arsenic reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Arsenic’s and/or any third party’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Arsenic may revoke any of the foregoing rights and/or your access to the Websites and Services, including the App, or any part thereof, and may remove Your Content at any time without prior notice.
5. Copyright Permission. Permission is granted for viewing the Website pages on the Internet and content via the Apps, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Arsenic or its licensors (except for Your Content) and Arsenic retains complete title to such information and all property rights therein. All other rights are reserved.
6. Your Submissions. If, when using the Services, you submit any photographic, video, music, text or other content (“Your Content”), you hereby grant Arsenic a non-exclusive, perpetual, royalty-free, worldwide right and license, with rights to sublicense, to distribute, publicly perform and publicly display in any form or medium, reproduce, modify, make derivative works of and otherwise use Your Content at Arsenic’s sole discretion. You represent and warrant that you have all necessary rights to grant the rights to Arsenic granted herein, including without limitation, all necessary consents from any individuals appearing in or whose content appears in Your Content. You agree that Your Content will not violate or infringe the rights of any third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
7. Trademarks. All Content, product names, trademarks, service marks and logos on the Websites Apps or as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Arsenic. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
9. Anti-Spam Policy. Arsenic prohibits the sending of unsolicited bulk email (spam). Spam is defined for this purpose as sending multiple messages similar in content to any persons, entities, or other groups or lists unless prior authorization has been obtained from the email recipient or unless a business or personal relationship has already been established with the email recipient. Arsenic also prohibits using false headers in emails or falsifying, forging or altering the origin of any email in connection with Arsenic, and/or its products and services. Arsenic prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise.
IF YOU OR ANYONE YOU KNOW IS "SPAMMED" BY SOMEONE WHILE USING THE SERVICES, PLEASE CONTACT US PROMPTLY SO THAT WE MAY TAKE APPROPRIATE ACTION.
10. DISCLAIMER. ARSENIC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO ARSENIC'S SERVICES, THE WEBSITES, OR CONTENT CONTAINED ON THE WEBSITES OR APPS.
THE SERVICES ARE PROVIDED "AS IS." WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE INACCURACIES IN THE INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR USE OF THE WEBSITES OR THE SERVICES. You will be solely responsible for maintaining independent archival and backup copies of any CONTENT made available through the WEBSITES OR Services. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING.
11. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT ARSENIC, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY PERSONAL INJURY OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR USE OF ARSENIC SERVICES.
THE CUMULATIVE LIABILITY OF ARSENIC TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR USE OF ARSENIC SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO ARSENIC BY YOU (IF ANY) DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth HEREin form an essential basis of the agreement between the parties HERETO, that the parties have relied upon such disclaimers, exclusions and limitations of liability, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
12. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS ARSENIC, ITS AFFILIATES, AGENTS, INDEPENDENT CONSULTANTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT OR ANY OTHER PERSON'S USE OR ACCESS TO THE SERVICES BY OR THROUGH YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, INCLUDING WITHOUT LIMITATION ANY CLAIMS OF LIBEL, DEFAMATION, VIOLATION OF RIGHTS OF PRIVACY OR PUBLICITY, TRESPASS, AND INFRINGEMENT OF INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.
13. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict of laws principles.
14. Arbitration Agreement. Except as provided herein, you and Arsenic agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Arsenic relating to the Services or this Agreement (each a "Claim") shall be submitted for binding arbitration in accordance with the rules of Jams, Inc. ("JAMS"). If JAMS is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider (“ADR Provider”) and the rules of such provider shall govern all aspects of the arbitration. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction.
For any claim where the total amount of the award sought is $10,000 or less, JAMS, you and Arsenic must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by JAMS rules, and the hearing (if any) will take place within one hundred miles of your residence.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Arsenic will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies. You and Arsenic also have the right to bring qualifying claims in small claims court. In addition, you and Arsenic retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor Arsenic may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Arsenic's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 14 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 14 shall continue in full force and effect. No waiver of any provision of this Section 14 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section 14 will survive the termination of your relationship with Arsenic.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES OR THE RULES OF AN ADR PROVIDER.
15. App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 3):
(a) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Arsenic and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Arsenic.
(d) You and we acknowledge that, as between Arsenic and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Arsenic and the App Store Owner, Arsenic, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
16. Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
17. Unenforceability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
18. Authority. The party entering into this Agreement hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into this Agreement and to legally bind said party to this Agreement.
19. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Arsenic without restriction.
20. Notices. You may contact us by writing us at the address or email address listed below:
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
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At Arsenic, Inc., we respect the copyright rights of others and have adopted the following procedure regarding the removal of allegedly infringing materials from any of our websites (“Website(s)”) and/or that appear via any applications we may have (“Apps”), consistent with the removal notification and counter-notification provisions of the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws.
The DMCA provides a process for an owner of copyrighted material to notify an online service provider of alleged copyright infringement. Upon receipt of a valid DMCA removal notification (described below), we will remove or disable access to the allegedly infringing content and take reasonable steps to contact the party that originally posted that content to allow it to file a counter-notification that indicates that it had the right to post the content. Upon receipt of a valid counter-notification (also described below), we may restore the content in question, unless we receive timely notice from the party that requested removal that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
By submitting either a removal notification or a counter-notification as described herein, the submitting party acknowledges and agrees that we may provide copies of such notices and any information contained therein to the other participants in the dispute or to any other third parties deemed necessary by us. Please note that federal law provides that any person who knowingly materially misrepresents: (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for damages, including costs and attorneys' fees.
If you believe someone has posted your copyrighted material on the Website or App and wish to have it removed, please send a removal notification to our designated copyright agent as provided below. To be considered valid, your request for removal must be written and include the following:
1. A statement that you are the owner of the material that has allegedly been infringed, or a statement that you are authorized to act on behalf of the owner of the material that has allegedly been infringed.
2. Your name, address, telephone number and, if available, an email address so that we may contact you.
3. A statement identifying the material that you believe to be infringing and information reasonably sufficient to permit us to locate that material. (If you believe multiple copyrighted works have been infringed, you can submit a single notification with a representative list of the allegedly infringed works.)
4. 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.
5. A statement, under penalty of perjury, that the information in the removal notification is accurate.
6. Your signature. (The signature may be electronic.)
Promptly after receipt of a valid removal notification, we will remove or disable access to the allegedly infringing content. We will also notify the party that posted it of your claim that the material is infringing and will give that party an opportunity to send us a written counter-notification as provided below.
In response to our receipt of a valid removal notice and removal of material, if you believe that the allegedly infringing material is not infringing and want us to restore it on the Website or App, please send a counter-notification to our designated copyright agent as provided below.
To be considered valid, your counter-notification must be written and include the following:
1. Your name, address, telephone number and, if available, an email address so that we may contact you.
2. A statement identifying the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material.
4. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or for Los Angeles County, California, if your address is outside of the United States), and that you will accept service of process from the person who sent the removal notice or an agent of such person.
5. Your signature. (The signature may be electronic.)
Promptly after receipt of a valid counter-notification, we will forward it to the party who submitted the original removal notification. After we send out the counter-notification, the party that submitted the original removal notification must then notify us within 10 business days that it has filed an action seeking a court order to restrain you from engaging in the allegedly infringing activity. If we receive such notification, we will not restore the material. If we do not receive such notification, we may reinstate the material within 10 to 14 days of receipt of the valid counter-notification.
Where to Send Notices
All notices should be sent to our designated copyright agent using the following contact information:
Attn: Copyright Agent
If sent via email, please insert “Copyright Agent” in the subject line.