PLEASE READ CAREFULLY--THIS IS A BINDING CONTRACT
THIS AGREEMENT ("AGREEMENT") IS A BINDING AGREEMENT BETWEEN MEDIAVINE, INC. ("COMPANY", "WE” OR “US”) AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY "YOU"). THIS AGREEMENT INCORPORATES BY REFERENCE (1) THE PRIVACY NOTICE POSTED ON WWW.MEDIAVINE.COM/PRIVACY-POLICY/ ("PRIVACY NOTICE"), AS THIS POLICY MAY BE MODIFIED BY COMPANY FROM TIME TO TIME.
BY CLICKING THE "I ACCEPT" BUTTON BELOW YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT COMPANY OR LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DID NOT WISH TO BE BOUND TO THE TERMS OF THIS AGREEMENT, CLICK THE "DECLINE" BUTTON BELOW.
Except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MEDIAVINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
- The Services and Account. Growô is a software as a service which provides for a universal log-in for each website that is a member of Company’s network (“Publishers”) wherein users can bookmark or save content from Publishers’ websites (“Publisher Content” and content that is saved by you through the Services shall be referred to as “Saved Publisher Content”) in one location online for ease of access, favorite or “heart” Publisher Content which shall appear on the Publisher website, and share Publisher Content on your social media channels (the “Services”). Publisher Content shall include, but not be limited to, blog posts and all associated text, images, and video.
You may only use and access your own Account, and you may not provide another person with the username and password to access your Account. You are fully responsible for any and all activities that occur under your password or Account. You agree to (a) immediately notify Company of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you exit from Account at the end of each session. Company will not be liable for any loss or damage arising from your failure to comply with this Section.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and references to you herein (and all of your obligations hereunder) will refer to such entity and any individual using the Service on such entity’s behalf.
You may only create one Account per email address. You are fully responsible for all activities that occur through the Account, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe that your account has been compromised in any way. You are responsible for maintaining up-to-date and accurate information for your Account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of the Saved Publisher Content or other data which you submit or use in connection with your account or the Services. However, you will be liable to Company for any use of your Account, whether or not authorized.
- Modifications to This Agreement. You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on Company’s website located at https://www.mediavine.com/ (the “Company Website”). Any revised terms will become effective thirty (30) days after we post them to the Company Website or, if we provide you a click-through or other means of accepting the revised terms, upon your acceptance. Continued use of the Services after the revised terms become effective constitutes acceptance on your part of such Additional Policies.
- Term, Termination and Suspension.
- Term. The term of this Agreement ("Term") will commence once you agree to the terms and conditions of this Agreement by clicking the "I Accept" button below and complete the registration process for your Account. The Agreement will remain in effect until terminated by you or us in accordance with Section 3 of this Agreement.
- Termination by You for Convenience. You may terminate this Agreement at any time and for any reason or no reason at all, at your convenience, by logging in to your Account and requesting to terminate your Account.
- Termination or Suspension by Us Other Than for Cause. We may suspend your right and license to use any or all Services, or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you five (5) days' advance notice in accordance with the notice provisions set forth in Section 16 below.
- Termination and Suspension for Cause. We may suspend your right and license to use the Services, or immediately terminate this Agreement in its entirety (and, accordingly, your right to use all Services, if:
- you attempt a denial of service attack on the Service;
- you attempt to hack or break any security mechanism on the Service, or we otherwise determine that your use of the Service poses a security or service risk to us, to any user of services offered by us, to our Publishers, or may subject us or any third party to liability, damages or danger;
- you otherwise use the Service in a way that disrupts or threatens the Service;
- we determine, in our sole discretion, there is evidence of fraud with respect to your Account;
- you use any of the Publisher Content other than as expressly permitted herein;
- we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service or any other Company service for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the intellectual property rights or other rights of any third party; or
- we determine, in our sole discretion, that our provision of the Service to you is prohibited by applicable law, or has become impractical or unfeasible for any legal, business or regulatory reason.
- Data Preservation in the Event of Suspension or Termination.
- SUSPENSION OTHER THAN FOR CAUSE. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 3(d), during the period of suspension, we will not take any action to intentionally erase any of your data stored on the Services.
- SUSPENSION OR TERMINATION FOR CAUSE. In the event of a suspension by us of your access to any Service for any reason for cause under Section 3(d), during the period of suspension we will not take any action to intentionally erase any of your data stored on the Services. If we elect to terminate the Agreement for cause under Section 3(d), all data will be immediately terminated.
- TERMINATION BY YOU. In the event you choose to terminate the Services, you must delete your Account. Thereafter, we shall have no obligation to continue to store your data.
- Authorization and License to Use the Services. Subject to your acceptance of and compliance with this Agreement, we hereby grant you a limited, non-sublicensable, non-exclusive, revocable and non-transferable right and license during the Term, in and under our intellectual property rights, to access and use the Services for your personal, internal use, solely in accordance with the terms and conditions of this Agreement.
- Permitted Uses Generally.
- FEEDBACK. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), you hereby grant Company an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
- Restricted Uses Generally.
- NO INTERFERENCE WITH PROPER FUNCTIONING. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services. You may not attempt to, or in any way: modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the Services. You may not attempt to, or in any way: reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the Services.
- NO DIRECT MARKETING OR ADVERTISING. You may not compile or use the Service or any other information obtained through the Service for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate state or federal anti-spamming laws and regulations.
- OTHER PROHIBITED ACTS. In addition to the acts prohibited in (i) and (ii), your use of the Service may not: (i) constitute, promote, facilitate or permit gambling; (ii) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (iii) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (iv) violate, misappropriate or infringe the intellectual property or other proprietary rights of Company, its affiliates or any third party. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- Social Media Networks and Social Media Post Sharing
- Sharing Publisher Content. Certain features of the Service may permit users to connect their social media accounts and share Publisher Content. Publishers retain any copyright and other proprietary rights that they may hold in the Publisher Content that you post to social media channels/networks via the Service. Company disclaims and any and all liability in connection with the Publisher Content, the connecting of your social media channels to the Services and the sharing of Publisher Content.
- Representations and Warranties. You represent and warrant that (1) you are the owner of the social media channel or have authorization to connect them to the Services; (2) you will not infringe, violate or misappropriate any Publisher or third-party right in connection with sharing the Publisher Content and (3) you will not cause the Company to violate any law or regulation.
- No Endorsement. Company neither endorses nor assumes any liability for any material shared through the Services.
- Publisher Content.
- Reservation of Rights. Company is under no obligation to edit, control, or monitor Publisher Content. Nonetheless, Company reserves the right to screen, remove, edit, or block any Publisher Content that Company finds in violation of the Terms or that Company finds, in its sole discretion to be otherwise objectionable. You understand that when using the Service you will be exposed to Publisher Content from a variety of sources and acknowledge that Publisher Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Company with respect to Publisher Content. If notified by a third-party that Publisher Content allegedly does not conform to these Terms, Company may investigate the allegation and determine in our sole discretion whether to remove the Publisher Content, which we reserve the right to do at any time and without notice. For clarity, Company does not permit copyright-infringing activities on the Service. In the event you believe you have encountered copyright infringement through your use of the Services, please see Mediavine’s copyright policy through this link for procedures to report to our copyright agent.
- Uptime, Downtime and Excluded Service Suspensions; Security.
- Uptime. Company will use all commercially reasonable efforts to make the Service available to you.
- Downtime. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that your access to and use of the Services may be temporarily suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions.
- Excluded Service Suspensions. We shall be entitled, without any liability to you, to suspend access to any portion or all of the Service at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; (c) due to factors that are outside of our reasonable control, including any force majeure event or Internet-wide disruption or related problems beyond the demarcation point of the Services; (d) that are caused by you or any third party; (e) that result from the failure of your equipment, software or other technology and/or third party equipment, software or other technology; (f) that arise from our suspension and termination of your right to use the Services in accordance with this Agreement; (g) as a result of our determination that any Service is prohibited by law or regulatory reasons or (h) any other commercially reasonable basis as determined in our sole discretion (collectively, "Excluded Service Suspensions").
Without limitation to 11(c), we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of disruption due to any Excluded Service Suspensions or other downtime. To the extent we are able, we will endeavor to provide you email notice of any planned Excluded Service Suspensions in accordance with the notice provisions set forth in 14 below and to post updates on the Company Website regarding resumption of the Service (if applicable) following any Excluded Service Suspensions, but shall have no liability for the manner in which we may do so or if we fail to do so.
- Security. We strive to keep the Service secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. You acknowledge that you bear sole responsibility for adequate security, protection and backup of the Saved Publisher Content. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of the Saved Publisher Content.
- Use and Disclosure. You shall not disclose Company Confidential Information during the Term or at any time during the ten (10) year period following the end of the Term or this Agreement. As used in this Agreement, "Company Confidential Information" includes all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Company Confidential Information includes, without limitation:
- nonpublic information relating to our or our business partners' technology, software, customers, business plans, promotional and marketing activities, finances and other business affairs (including any information about or involving beta tests or a product that you obtain as a result of your participation in such beta test);
- third-party information that we are obligated to keep confidential; and
- the nature, content and existence of any discussions or negotiations between you and us.
Confidential Information does not include any information described in (b) or any information that you are legally required to disclose provided that you provide us (unless prohibited by applicable law) with prompt written notice of any such request for our Confidential Information so that we may seek a protective order or other relief to prevent or limit the requested disclosure.
- Non-Confidential Information. Notwithstanding any other provision in this Agreement, you shall not have any obligation to ensure the confidentiality of any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that:
- is or becomes publicly available without breach of this Agreement;
- can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party;
- is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or
- can be shown by documentation to have been independently developed by the receiving party without use of the disclosing party’s Confidential Information.
- Intellectual Property.
- Our Services. The Service is owned by Mediavine. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Service; (ii) Company trademarks, including but not limited the Mediavine and Grow word and logo marks (or "Marks"); and (iii) any other technology and software that we provide or use to provide the Services. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, templates, and all other elements of the Service (“Materials”) provided by Company are protected by intellectual property and other laws. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Service, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement. Company reserves all rights to the Materials not expressly granted in these Terms.
- Your Applications, Data and Content. We will not disclose the Saved Publisher Content, except: (i) if you expressly authorize us to do in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
- Non-Assertion. During and after the Term of the Agreement, with respect to any of the Service that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to the Service.
- Representations and Warranties.
- Use of the Service. You represent and warrant that you will not use the Service, and/or the Saved Publisher Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data subject to export limitations, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and Council Regulation (EC) No 428/2009; or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful or discriminatory to any person or entity.
- Authorization and Account Information. You represent and warrant that: (i) the information you provide in connection with your registration for the Service is accurate and complete; (ii) if you are registering for the Service as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Service as an entity or organization, that (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking "I Accept" on this Agreement and completing the registration for the Service meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Service are duly authorized to access the Service and to legally bind you to this Agreement and all transactions conducted under your Account.
- Disclaimer & Limitations on Liability.
- General Disclaimer of Warranties. THE SERVICE AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "OFFERINGS") ARE PROVIDED "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS.NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT ANY EFFORTS BY US TO MODIFY OUR SERVICES SHALL NOT BE DEEMED A WAIVER OF THIS GENERAL DISCLAIMER OF WARRANTIES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU.
EXCEPT AS PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO COMPANY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- No Liability for Publisher Content and/or Third-Party Websites. We specifically disclaim all liability for the Publisher Content. We are not responsibly for the contents or functionality of any Publisher website or Publisher Content. The Service may contain links to websites that are not under our control, including the Publisher websites and Publisher Content ("Third Party Sites"). We are not responsible for the contents or functionality of any Third-Party Sites or any website that can be accessed via links on any Third-Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third-Party Site.
- Limitations of Liability. WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE REASONABLY FORESEEABLE TO US, OR WE WERE GROSSLY NEGLIGENT) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SAVED PUBLISHER CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- General. You are responsible for your use of the Service and you agree to indemnify, defend and hold us, our affiliates and licensors, our Publishers, each of our and their business partners and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys' fees), arising out of or in connection with any claim relating to (i) your use of the Service or your use of the Service in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions and/or applicable law, (ii) your infringement of the Publisher Content or Saved Publisher Content, (iii) your violation of any term or condition of this Agreement, including without limitation, your representations and warranties (iv) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, (v) you or your employees' or personnel's negligence or willful misconduct; or (vi) any dispute or issue between you and any third party.
- Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
- Dispute Resolution and Arbitration. You agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is listed in section 14. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. The arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
- No Class Actions. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration, in which case the Account will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If this Section 13 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
- Jurisdiction. Any dispute arising under this Agreement or related to the Services not subject to the Arbitration provision, shall be adjudicated in any state or federal court in or nearest Palm Beach County, Florida and you consent to exclusive jurisdiction and venue in such courts.
- Governing Law. By using the Services, you agree that the law of the State of Florida, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.
- Notices. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally will be posted on the Company Website. Notices made by us under this Agreement for you or your Account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Service or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact Company as follows:
160 W. Camino Real #504
Boca Raton Florida 33432
- Miscellaneous Provisions.
- Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
- Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
- Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision or any other provision in this Agreement thereafter. All waivers by us must be in writing to be effective.
- Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Company Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter. This Agreement may be only be amended or modified by a written agreement signed by an authorized representatives of the Company.
- Survival. In the event this Agreement is terminated for any reason, the provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement, including without limitation confidentiality and indemnity obligations and limitations of liability.
- No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of the Publisher Content.
- Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).
- Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Force Majeure. We shall not be liable hereunder for any failure or delay in the performance of our obligations under this Agreement if such failure or delay is on account of causes beyond our control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event we shall be excused from our obligations for the period of the delay and for a reasonable time thereafter.
- Acknowledgement. By clicking the "I ACCEPT" button below, you indicate and agree that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.