Unless otherwise indicated, the Site is our proprietary
property and all source code, databases, functionality, software, website
designs, audio, video, text, photographs, and graphics on the Site
(collectively, the “Content”) and the trademarks, service marks, and logos
contained therein (the “Marks”) are owned or controlled by us or licensed to
us, and are protected by copyright and trademark laws and various other
intellectual property rights and unfair competition laws of the United States,
international copyright laws, and international conventions. The Content and the
Marks are provided on the
Site “AS IS” for your information and personal use only. Except as expressly
provided in these Terms
of Use, no part of the Site and no Content or Marks may be copied, reproduced,
aggregated, republished, uploaded, posted, publicly displayed, encoded,
translated, transmitted, distributed, sold, licensed, or otherwise exploited
for any commercial purpose whatsoever, without our express prior written
permission.
We reserve the
right, but not the obligation, to: (1) monitor the Site for violations of
these Terms of Use; (2) take appropriate legal action against anyone who, in
our sole discretion, violates the law or these Terms of Use, including without
limitation, reporting such user to law enforcement authorities; (3) in our sole
discretion and without limitation, refuse, restrict access to, limit the
availability of, or disable (to the extent technologically feasible) any of
your Contributions or any portion thereof; (4) in our sole discretion and
without limitation, notice, or liability, to remove from the Site or otherwise
disable all files and content that are excessive in size or are in any way
burdensome to our systems; and (5) otherwise manage the Site in a manner
designed to protect our rights and property and to facilitate the proper
functioning of the Site.
PRIVACY
POLICY
We
care about data privacy and
security. By using
the Site, you agree to be bound by our
Privacy Policy posted on the Site, which
is incorporated into these Terms of Use.
Please be advised the Site is hosted in
the
United States
. If you access
the Site from any other region of the
world with laws or other requirements
governing personal data collection, use,
or disclosure that differ from
applicable laws in
the
United States
, then through
your continued use of the Site, you are
transferring your data to
the
United States
, and you agree to
have your data transferred to and
processed in
the
United States
.
These
Terms of Use shall remain in full force and effect while you use the Site. WITHOUT
LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE
DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE
(INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO
REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR
COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY
TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE
ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME,
WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate
or suspend your account for any reason, you are prohibited from registering and
creating a new account under your name, a fake or borrowed name, or the name of
any third party, even if you may be acting on behalf of the third party. In
addition to terminating or suspending your account, we reserve the right to
take appropriate legal action, including without limitation pursuing civil,
criminal, and injunctive redress.
MODIFICATIONS AND
INTERRUPTIONS
We reserve the right to change, modify, or remove
the contents of the Site at any time or for any reason at our sole discretion without
notice. However, we have no obligation to update any information on our Site. We also
reserve the right to modify or discontinue all or part of the Site without notice at any
time. We will not be liable to you or any third party for any modification, price
change, suspension, or discontinuance of the Site.
We cannot guarantee
the Site will be available at all times. We may experience hardware, software,
or other problems or need to perform maintenance related to the Site, resulting
in interruptions, delays, or errors. We
reserve the right to change, revise, update, suspend, discontinue, or otherwise
modify the Site at any time or for any reason without notice to you. You agree that we
have no liability
whatsoever for any loss, damage, or inconvenience caused by your inability to
access or use the Site during any downtime or discontinuance of the Site. Nothing in
these Terms of Use will be
construed to obligate us to maintain and support the Site or to supply any
corrections, updates, or releases in connection therewith.
These Terms of Use and your use of the Site are
governed by and construed in accordance with the laws of
the State of California
applicable to agreements made and to be entirely performed within
the State of California
, without regard to its conflict of law principles.
If
the Parties are unable to resolve a Dispute
through informal negotiations, the Dispute
(except those Disputes expressly excluded below)
will be finally and exclusively resolved by
binding arbitration. YOU UNDERSTAND THAT WITHOUT
THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE
IN COURT AND HAVE A JURY TRIAL. The arbitration
shall be commenced and conducted under the
Commercial Arbitration Rules of the American
Arbitration Association ("AAA") and, where
appropriate, the AAA’s Supplementary Procedures
for Consumer Related Disputes ("AAA Consumer
Rules"), both of which are available at the AAA
website: www.adr.org.
Your arbitration fees and your share of
arbitrator compensation shall be governed by the
AAA Consumer Rules and, where appropriate,
limited by the AAA Consumer Rules.
The arbitration may be conducted
in person, through the submission of
documents, by phone, or online. The
arbitrator will make a decision in
writing, but need not provide a
statement of reasons unless requested by
either Party. The arbitrator must follow
applicable law, and any award may be
challenged if the arbitrator fails to do
so. Except where otherwise required by
the applicable AAA rules or applicable
law, the arbitration will take place in
California
. Except as otherwise provided herein, the Parties may litigate in court to compel
arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter
judgment on the award entered by the arbitrator.
If
for any reason, a Dispute proceeds in court rather than
arbitration, the Dispute shall be commenced or prosecuted in
the
state and federal
courts
, and the Parties hereby consent to, and waive all defenses of
lack of personal jurisdiction, and forum non conveniens with respect to
venue and jurisdiction in such
state and federal courts
. Application of the United Nations Convention on Contracts for
the International Sale of Goods and the Uniform Computer Information
Transaction Act (UCITA) are excluded from these Terms of Use.
If this provision is found to be illegal or
unenforceable, then neither Party will elect to
arbitrate any Dispute falling within that portion of
this provision found to be illegal or unenforceable and
such Dispute shall be decided by a court of competent
jurisdiction within the courts listed for jurisdiction
above, and the Parties agree to submit to the personal
jurisdiction of that court.
The
Parties agree that any arbitration shall be limited to the Dispute
between the Parties individually. To the full extent permitted by law,
(a) no arbitration shall be joined with any other proceeding; (b) there
is no right or authority for any Dispute to be arbitrated on a
class-action basis or to utilize class action procedures; and (c) there
is no right or authority for any Dispute to be brought in a purported
representative capacity on behalf of the general public or any other
persons.
Exceptions to Arbitration
The
Parties agree that the following Disputes are not subject to the above
provisions concerning binding arbitration: (a) any Disputes seeking to
enforce or protect, or concerning the validity of, any of the
intellectual property rights of a Party; (b) any Dispute related to, or
arising from, allegations of theft, piracy, invasion of privacy, or
unauthorized use; and (c) any claim for injunctive relief. If this
provision is found to be illegal or unenforceable, then neither Party
will elect to arbitrate any Dispute falling within that portion of this
provision found to be illegal or unenforceable and such Dispute shall be
decided by a court of competent jurisdiction within the courts listed
for jurisdiction above, and the Parties agree to submit to the personal
jurisdiction of that court.
There may be
information on the Site that contains typographical errors, inaccuracies, or
omissions, including descriptions, pricing, availability, and various other
information. We reserve the right to
correct any errors, inaccuracies, or omissions and to change or update the
information on the Site at any time, without prior notice.
THE SITE IS PROVIDED
ON AN AS-IS AND AS-AVAILABLE BASIS. YOU
AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE
FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT
THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY
WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY
FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM
YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL
INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION
TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH
MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY
ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE,
OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A
THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE
APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A
PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU
AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE
PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU
SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES,
OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS
OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM
OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO
THE
AMOUNT PAID, IF ANY, BY YOU TO US
. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO
NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE
LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS
OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE
ADDITIONAL RIGHTS.
You agree to
defend, indemnify, and hold us harmless, including our subsidiaries,
affiliates, and all of our respective officers, agents, partners, and
employees, from and against any loss, damage, liability, claim, or demand, including
reasonable attorneys’ fees and expenses, made by any third party due to or
arising out of:
(1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your representations and
warranties set forth in these Terms of Use; (4) your violation of the rights of a third
party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other
user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we
reserve the right, at your expense, to assume the exclusive defense and control of any
matter for which you are required to indemnify us, and you agree to cooperate, at your
expense, with our defense of such claims. We will use reasonable efforts to notify you
of any such claim, action, or proceeding which is subject to this indemnification upon
becoming aware of it.
We will maintain
certain data that you transmit to the Site for the purpose of managing the
performance of the Site, as well as data relating to your use of the Site. Although we perform
regular routine backups
of data, you are solely responsible for all data that you transmit or that
relates to any activity you have undertaken using the Site. You agree
that we shall have no liability to you for any loss or corruption of any such
data, and you hereby waive any right of action against us arising from any such
loss or corruption of such data.
ELECTRONIC
COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and
completing online forms constitute electronic communications. You consent to receive electronic
communications, and you agree that all agreements, notices, disclosures, and other
communications we provide to you electronically, via email and on the Site, satisfy any legal
requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC
SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES,
POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby
waive any rights or requirements under any statutes, regulations, rules, ordinances, or other
laws in any jurisdiction which require an original signature or delivery or retention of
non-electronic records, or to payments or the granting of credits by any means other than
electronic means.
CALIFORNIA USERS
AND RESIDENTS
If any complaint
with us is not satisfactorily resolved, you can contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N
112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916)
445-1254.
These Terms of Use and any policies or operating
rules posted by us on the Site or in respect to the Site constitute the entire agreement and
understanding between you and us. Our failure to exercise or enforce any right or provision of
these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use
operate to the fullest extent permissible by law. We may assign any or all of our rights and
obligations to others at any time. We shall not be responsible or liable for any loss, damage,
delay, or failure to act caused by any cause beyond our reasonable control. If any provision or
part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable,
that provision or part of the provision is deemed severable from these Terms of Use and does not
affect the validity and enforceability of any remaining provisions. There is no joint venture,
partnership, employment or agency relationship created between you and us as a result of these
Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against
us by virtue of having drafted them. You hereby waive any and all defenses you may have based on
the electronic form of these Terms of Use and the lack of signing by the parties hereto to
execute these Terms of Use.