Terms of Service
Last Updated: 2/12/18
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND WAIVER OF JURY TRIALS AND CLASS ACTIONS, GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
PURCHASING INDIVIDUAL PHOTOGRAPHS (“INDIVIDUAL PURCHASES”) AND/OR PURCHASING OR USING SUBSCRIPTION PLANS
(“SUBSCRIPTION PLAN SERVICES”). (THE WEBSITE, INDIVIDUAL PURCHASES AND SUBSCRIPTION PLAN SERVICES ARE,
COLLECTIVELY, THE “SERVICES”). THESE TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU OR, IF APPLICABLE,
THE BUSINESS OR EMPLOYER ON WHOSE BEHALF YOU WISH TO USE THE SERVICES (IN EITHER CASE, “CUSTOMER” OR “YOU”)
AND STORYCRAFT. LLC, A NEVADA LIMITED LIABILITY COMPANY HAVING A PLACE OF BUSINESS AT 312 ARIZONA AVENUE, 2
FLOOR, SANTA MONICA, CA 90401(THE “COMPANY,” “WE,” OR
- Use of this Website . Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use this Website only as expressly permitted in these Terms and our License Agreement found at https://www.storycraftstock.com/license , which is incorporated herein by this reference and made a part hereof. You shall not use or permit use of the Services for any illegal purpose or in any manner inconsistent with the provisions of these Terms. Any violation by you of these Terms may result in the immediate termination of your right to use the Services, as well as potential liability for copyright infringement or other claims depending on the circumstances.
- Ownership. The Website contains materials that are proprietary and are protected by copyright laws, trademarks, service marks, and other intellectual property laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Website, in these Terms, or in the License Agreement. The trademarks, logos, taglines and service marks displayed on the Website (collectively, the “Trademarks”) are registered and unregistered Trademarks of Company and others. The Trademarks may not generally be used by you in any manner without Company’s prior express written consent.
- Contributor Content. The Services may enable you to submit, post, upload, or otherwise make available (collectively, “Submit”) content ("Contributor Content") that we may or may not make viewable by other users. If you Submit Contributor Content, such submission will be governed by the terms of our Contributor Agreement, which we provide to all users who wish to Submit Contributor Content. You may not submit Contributor Content until you have agreed to the terms of the Contributor Agreement. In the event of a conflict between the terms of the Contributor Agreement and these Terms, the terms of the Contributor Agreement will govern the Contributor Content you Submit and the terms of these Terms will govern all of your other use of the Services.
- Copyright Infringement. If you believe any Contributor Content or other content found on the Website infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to our Designated Agent:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Upon receipt of such notification, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
- terminate such content provider's access to the Services.
If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
- A physical or electronic signature of the content provider;
- Identification of 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 disabled;
- A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which we are located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, we may, in our discretion, send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
Our Designated Agent can be reached at: StoryCraft, LLC, Attn: Copyright Agent, 312 Arizona Avenue, 2nd Floor, Santa Monica, CA 90401.
- Use Restrictions.
5.1 By using the Services, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
- Is illegal, or violates any federal, state, or local law or regulation;
- Advocates illegal activity or discusses illegal activities with the intent to commit them;
- Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
- Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
- Interferes with any other party’s use and enjoyment of the Services;
- Attempts to impersonate another person or entity;
- Is commercial in a way that violates these Terms or the License Agreement, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
- Falsely states, misrepresents, or conceals your affiliation with another person or entity;
- Accesses or uses the account of another user without permission;
- Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
- Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Website, or the servers or networks connected to the Website, or any of the Services;
- “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
- Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
- Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Website, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
- Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Website;
- Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Website, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
- Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Website;
- Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Website or Services, by any means except as provided for in these Terms or the License Agreement or with the prior written consent of Company; or
- Attempts to do any of the foregoing.
5.2 In addition, you shall not, and shall not permit others to, do the following with respect to the Services:
- Use the Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms;
- License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Services available for access by third parties except as otherwise expressly provided in these Terms; or
- Access or use the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of Company.
5.3 You may link to the Website, provided that you acknowledge and agree that you will not link the Website to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Services effective immediately.
5.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Website for violations of these Terms. However, we have the right to do so for the purpose of operating and improving the Website (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
- Customer Obligations and Updates and Communications.
- Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited herein, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
- We may revise these Terms or any additional terms and conditions which are relevant to a particular Service from time-to-time to reflect changes in the law or to the Services. We will post the revised terms on our Website with a “last updated” date at the top of the Terms. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
- You agree to receive electronically all communications, agreements, and notices that we provide in connection with any Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Website or through any Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your account contact information current.
- Subscription Plan Services.
- Terms Specific to Subscription Plan Services. You will receive a specified number of downloads each month based on the Subscription Plan you choose (“Download Credits”). We may allow the unused downloads to carry over to renewal terms up to a capped amount if you have renewed the subscription without letting it lapse and without downgrading to a lesser value subscription. Download Credits may be used to download any photo in our library. If you run out of Download Credits, you will be given the option to buy single images a-la-carte, or, to upgrade to the next level of Subscription Plan Services, providing you with additional Download Credits in accordance with that subscription level.
- Changes. Company reserves the right, in its sole discretion, to make any changes to the Subscription Plan Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company's services to its customers, (ii) the competitive strength of or market for Company's services or (iii) the Subscription Plan Services' cost efficiency or performance; or (b) to comply with applicable law.
- Suspension or Termination of Services. Company may suspend, terminate or otherwise deny Customer's or any other person's access to or use of all or any part of the Subscription Plan Services, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with, any material term of these Terms,; (ii)accessed or used the Subscription Plan Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (iii) Customer is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscription Plan Services; or (iv) the term of the Subscription Plan Services expires or is terminated. This Section does not limit any of Company's other rights or remedies, whether at law, in equity or under these Terms.
- Authorization and Customer Restrictions.
- Authorization. Subject to and conditioned on Customer's payment of the Fees (as applicable when Customer signs up for a Subscription Plan) and compliance and performance in accordance with all other terms and conditions of these Terms, Company hereby authorizes Customer to access and use, during the Term, the Subscription Plan Services as Company may supply or make available to Customer, on the conditions and limitations set forth in these Terms. This authorization is non-exclusive and non-transferable.
- Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Subscription Plan Services except as expressly permitted by these Terms.
- Fees; Payment Terms.
- Fees. For Subscription Plan Services, Customer shall pay Company the monthly fee or annual fee associated with the type of account Customer chooses ("Subscription Fees"). For Individual Purchases, Customer shall pay Company the fee listed on the Website at the time of purchase (“Individual Purchase Fee”). The Subscription Fees and Individual Purchase Fee are, collectively, the “Fees.” If you exceed the number of Download Credits allotted to your Subscription Plan, and you choose the a-la-carte option to download a photo, we may charge these downloads at the then-current rate for such downloads using the payment information you provided to us at the time you purchased your Subscription Plan. The price for these additional downloads may be different than the price for downloads within the allotted amount in your Subscription Plan.
- Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income.
- Payment. Fees will be charged to the credit card used by Customer when signing up for an account. Subscription Fees will be charged to such credit card on a recurring monthly basis in the amount specified by Company at the time Customer signed up for the Subscription Plan Services. Customer will not receive any advance notice of this payment. The prices, features, and options of the Subscription Plan Services depend on the Subscription Plan selected. Company does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
- Recurring Charges. When you purchase Subscription Plan Services, you must provide accurate and complete information for a valid credit card that you are authorized to use. You must promptly notify us of any change in your invoicing address and must update your account with any changes related to your payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN SERVICE, CUSTOMER AUTHORIZES COMPANY OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN SERVICE CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SUBSCRIPTION PLAN SERVICES. The Authorization continues through the applicable term and any renewal term (as defined herein, below) until Customer cancels as set forth in these Terms.
- Late Payment. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, Company may in its sole discretion permanently restrict Customer’s ability to use a certain payment method if that payment method fails. If Customer fails to make any payment when due then, commencing five (5) business days after Customer’s receipt of a default notice, in addition to all other remedies that may be available: (a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Company for all costs reasonably incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and (c) if such failure continues for ten (10) business days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. All amounts payable to Company shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
- Term and Termination.
- Term. The term of the Subscription Plan Services will either be a month to month term or a one (1) year term, depending on which Subscription Plan you choose. A month to month Subscription Plan will automatically renew on a monthly basis for additional one (1) month terms, and an annual Subscription Plan will automatically renew on an annual basis for additional one (1) year terms, unless otherwise agreed upon between Customer and Company in writing.
- Termination. In addition to any other express termination right set forth elsewhere in these Terms: (a) Company may terminate any agreement for Subscription Plan Services, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Company's delivery of written notice thereof; (b) either party may terminate an agreement for Subscription Plan Services, effective on written notice to the other party, if the other party materially breaches these Terms and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (c) either party may terminate an agreement for Subscription Plan Services, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and (d) Either party may terminate a month to month agreement for Subscription Plan Services for any reason or no reason upon not less than thirty (30) days prior written notice to the other party; and (e) Either party may terminate an annual agreement for Subscription Plan Services for any reason or no reason upon giving written notice to the other party not less than thirty (30) days for the date of expiration of the then-current Subscription Plan term.
- Survival. The provisions of Section 11.3 (Survival), Section 12 (Disclaimer of Warranties), Section 13 (Indemnification), Section 14 (Limitations on Liability), Section 16 (Miscellaneous), will survive termination of these Terms.
- Disclaimer of Warranties.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of these limitations may not apply to you.
- Indemnification. You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) your access to and use of the Services; (b) your violation of these Terms; (c) infringement of any intellectual property or other right of any person or entity by you; or (d) any products or services purchased or obtained by you in connection with the Services. We retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. 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 with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Limitations of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE COMPANYS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US FOR THE SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
- Force Majeure.
- No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms for any failure or delay in fulfilling or performing any term of these Terms (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate these Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Export Control Laws. You acknowledge that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Company makes available (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by Export Laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Website.
- Third Party Terms. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. COMPANY IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE WEBSITESITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with third parties found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such links to third-party web sites or resources on the Website, and you understand that you are bound by the terms of such third parties.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms have binding legal effect only if in writing and addressed to a party at the address set forth at the time of registering for Services (in the case of Customer) or at the address set forth on the Website (in the case of Company) (or to such other address or such other person that such party may designate from time to time). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company's prior written consent, which consent Company shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section is void. These Terms are binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
- No Third-party Beneficiaries. These Terms for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
16.10.1 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
16.10.2 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties' relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Arbitration shall be initiated and take place in Los Angeles County, California, United States, and you and Company agree to submit to the personal jurisdiction of any federal or state court in, Los Angeles County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
16.10.3 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial, but by agreeing to this mandatory arbitration section, they give up those rights. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
16.10.3 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
16.10.4 Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
- Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Los Angeles County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Attorneys' Fees. In the event that any arbitration, action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
- Contacting Us. If you have any questions about the Services or Terms, pricing, complaints, or other inquiries, please contact us at 312 Arizona Avenue, 2nd Floor, Santa Monica, CA 90401 or at firstname.lastname@example.org. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.