Effective Date: May 25, 2023.
1. Introduction and Overview.
PLEASE NOTE THAT THESE TERMS CONTAIN PROVISIONS THAT GOVERN THE RESOLUTION OF DISPUTES BETWEEN US AND YOU AND LIMIT OUR LIABILITY TO YOU (SEE AGREEMENT TO ARBITRATE DISPUTES BELOW). THESE PROVISIONS SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
2. Service Use.
“Content” shall be defined to include: (i) materials and other items relating to us and our products and services, and similar items from our licensors and other third parties, including all layout, information, dashboard, databases, text, data, files, images, scripts, designs, instructions, illustrations, photographs, sounds, pictures, videos, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) our trademarks, logos, trade names, trade dress, service marks, and trade identities; and (iii) your feedback, suggestions, enhancement requests, recommendations, or comments to our Service. All right, title, and interest in and to the Service is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, and use the Service for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in the Service or any Content; and (ii) may be suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. All rights not expressly granted to you are reserved by us and our licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
You may not use the Service unless you are at least eighteen (18) years old.
You may not: (i) use the Service for any political or commercial purpose; (ii) engage in any activity in connection with the Service that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
Unless otherwise noted, you are only eligible for one “sign-up” incentive on each website, app, or service. In the event you register multiple times, including with different email addresses, we reserve the right to retroactively remove, rescind and/or deduplicate such accounts and rewards, donations, or other such incentives.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service.
We may suspend or terminate the availability of the Service, in whole or in part, to any individual user or all users, for any reason, in our sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from us, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.
3. Customer Support.
If you have any questions or comments, please send an e-mail to us at: [Insert Email]. You acknowledge that the provision of support is at our sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: [Insert Address]. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
4. Third Party Services.
Please note that any change in your choices, will be limited to the e-mail address used and will not affect subsequent accounts.
6. Agreement to Arbitrate Disputes and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
Prior to commencing any arbitration in connection with these Terms or the Service and Content, you and we agree to negotiate the dispute in good faith on an individual basis for no less than 30 days after notice of the dispute is provided along with your current email address. If we have a dispute with you, we will provide notice to such email address or to an email address we have on file for you, if any. If the claims cannot be resolved within 30 days after receipt of notice of the dispute, you and we agree to resolve such claims through final and binding arbitration, except to the extent such claims are excluded under Section 6.F herein. Under such circumstances, we may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service without first engaging in arbitration or the informal dispute resolution process described herein.
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or we must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to your local JAMS office.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. The arbitration hearing may be by telephone or in-person. Disputes may also be resolved by submission of documents and without in-person or telephonic hearings as provided by the Rules. To the extent necessary, the locale of the hearing will be the county of the consumer’s home address or, at the consumer’s election, such other locale as mutually agreed to by the parties, or as determined by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and us, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
E. No Class Actions.
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. Exceptions to Arbitration.
This Agreement to Arbitrate shall not require arbitration of the following types of disputes: (i) infringement of our intellectual property (for example, trademark, trade secret, copyright, or patent rights); (ii) breach of our confidentiality; and (iii) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction.
G. Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
H. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of Illinois, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Chicago, Illinois.
I. Opt-Out of Agreement to Arbitrate.
You can decline this Agreement to Arbitrate by emailing us at firstname.lastname@example.org and providing the requested information as follows: (i) Your Name; (ii) the URL of the Terms and Agreement to Arbitrate Disputes; (iii) Your Address; (iv) Your Phone Number; and (v) a clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms by using the Service.
7. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. NEITHER COMPANY NOR ANY OF OUR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE SERVICES, CONTENT OR ANY THIRD PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY CLAIMS, STATUTORY CONSUMER RIGHTS, OR DAMAGES WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
8. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (I) THE SERVICE; (II) THESE TERMS; OR (III) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IN THE EVENT YOU HAVE ANY BASIS FOR RECOVERING DAMAGES ARISING FROM THE SERVICE OR A BREACH OF THESE TERMS, YOU AGREE THAT YOUR EXCLUSIVE REMEDY IS TO RECOVER FROM THE COMPANY PARTIES DIRECT DAMAGES AND THAT THE COMPANY PARTIES’ MAXIMUM LIABILITY IS LIMITED UP TO AN AMOUNT EQUAL TO ONE HUNDRED DOLLARS ($100).
You agree to defend, indemnify and hold harmless the Company Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your misuse of the Service; (iii) your violation of any applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (iv) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (v) your use of a Third Party Service; or (vi) any misrepresentation made by you. We reserve the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with our defense of any claim. You will not in any event settle any claim without our prior written consent.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
10. Waiver of Injunctive or other Equitable Relief.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY US OR OUR LICENSORS.
11. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
12. General Provisions.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, will survive.
B. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. We may assign our rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of us.
C. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms: (i) no failure or delay by you or us in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
D. International Issues.
We control and operate the Service from the United States (“U.S.”), and we make no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
E. Investigations; Cooperation with Law Enforcement.
We reserve the right to investigate and prosecute any suspected breaches of these Terms. We may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
F. California Residents.
Residents of California may be entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.