Extended Use Agreement
Effective as of June 18, 2024
PLEASE CAREFULLY READ THESE TERMS OF USE, ALONG WITH THE
PRIVACY POLICY AND OTHER POLICIES OR AGREEMENTS REFERENCED IN THESE TERMS OF
USE, BEFORE USING THE "COMPANY SERVICES" (AS DEFINED BELOW).
Description of Company Services and Acceptance of Terms of
Use Including Arbitration of Disputes
Ruger Diet & Fitness ("Company, "we" or
"us") has developed these Terms of Use to describe the terms that
govern your use of https://rugerfitnessblog.blogspot.com/, the Ruger Diet &
Fitness iOS application, the Ruger Diet & Fitness Android application, the Android
application and any Company branded URL, WAP site and mobile application and
other content and services that link to these Terms of Use (collectively the
"Company Sites"). The services Company provides on Company Sites
include Content (defined below) messaging services, video services, RRS feeds,
podcasting services, mobile services, text messaging campaigns, and any other
feature, content or application offered from time to time by Company
(collectively, the "Company Services"). Company is based in the
United States and the Company Services are hosted in the United States.
Company furnishes the Company Sites and the Company Services
for your personal enjoyment and entertainment. By visiting the Company Sites
(whether or not you are a registered member) or using the Company Services, you
accept and agree to be bound by this Agreement, including any future
modifications ("Agreement"), and to abide by all applicable laws,
rules and regulations ("Applicable Law"). Please read through this
Agreement carefully. Company may modify this Agreement at any time, and each
such modification will be effective upon posting on the Company Sites. All
material modifications will apply prospectively only. Your continued use of the
Company Sites or the Company Services following any modification of this
Agreement constitutes your acceptance of and agreement to be bound by the
Agreement as modified. It is therefore important that you review this Agreement
regularly. If you do not agree to be bound by this Agreement and to abide by
all Applicable Law, you must discontinue use of the Company Services
immediately.
Your access to and use of certain Company Services is
conditioned upon your compliance with this Agreement, which incorporated by
reference our Privacy Policy and any end user license agreement that might
accompany the Company Services. Your access to and use of certain Company
Services may require you to accept additional terms and conditions applicable
to such Company Services, in addition to this Agreement, and may require you to
download software or Content (as defined below). In the event of a conflict
between any such additional terms and this Agreement, such additional terms
will prevail.
Registration and Security
You take full responsibility for your participation on the
Company Sites. As a condition of using certain features of the Company Sites,
you may be required to register on the Company Sites and/or select a username
and password. All registration information you submit to create an account must
be accurate and kept up to date. Your failure to do so will constitute a breach
of the Agreement, which may result in immediate termination of your account.
You may not (i) select or use as a username the name of another person with the
intent to impersonate that person; or (ii) use as a username a name subject to
any rights of another person without appropriate authorization. Company
reserves the right to refuse registration of, or cancel, a username, in its
sole discretion. If we cancel your registration, you agree that you will not
create another one or otherwise try to access the Company Services without our
permission. You agree not to sell, transfer or assign your registration or any
registration rights. It is your responsibility to notify us of any changes in
such information, including but not limited to your contact information.
You are responsible for maintaining the confidentiality of
your password and are responsible for all use of your account. It is therefore
critical that you do not share your password with anyone. You agree not to use
the account, username, email address or password of another member or
subscriber at any time and not to allow any other person to use your account.
Your account is not transferable. You agree to notify Company immediately if
you suspect any unauthorized use of, or access to, your account or password.
Access
The Company Sites are intended solely for your personal and
non-commercial use. Company may change, suspend or discontinue the Company
Sites (or any feature thereof) at any time. Company may also impose limits on
certain features and services offered on the Company Sites or restrict your
access to parts or all of the Company Sites without notice or liability. You
acknowledge that from time to time the Company Sites may be inaccessible or
inoperable for any reason, including, without limitation: (i) equipment
malfunctions; (ii) periodic maintenance procedures or repairs which Company may
undertake from time to time; or (iii) causes beyond the control of Company or
which are not reasonably foreseeable by Company.
The Company Services are not intended to be used by children
without involvement and approval of a parent or guardian. If you are under the
age of 13, you are not permitted to register with a Company or provide your
personal information to the Company. If you are at least 13 and under 18 years
of age (or under the applicable age of majority in your state or territory of
residence), you may register with the Company Services only if you have the
consent of your parent or guardian, including consent to this Agreement on your
behalf. If you subscribe to a Company and wish to create sub profiles (if
available) under your subscription, you must ensure all users of such sub
profiles are 18 years of age or older (or the applicable age of majority in
your state or territory of residence).
Termination
Unless terminated by Company in its sole discretion, this
Agreement remains in full force and effect while you use the Company Services.
You may terminate your account on the Company Sites at any time, for any
reason, by emailing https://rugerfitnessblog.blogspot.com/p/privacy-policy.html,
Subject: Terminate My Account. The company may terminate your account and/or
access to the Company Services at any time, for any or no reason, with or
without prior notice or explanation, and shall have no liability to you for
such termination. Even after your user account or access to the Company
Services is terminated by you or by Company, this Agreement will remain in
effect with respect to your past and future use of the Company Sites or the
Company Services. Any rights to your account terminate upon your death.
Fees
You acknowledge that the Company reserves the right to
charge subscription fees for any portion of the Company Services. The Company
will provide you with advance notice of any such fees, including any change in
the amount of such fees, and a way to cancel your account or subscription in
the event you do not wish to pay the modified fee. If you continue to use the
Company Services after a subscription fee has been imposed or increased, you
are expressly agreeing to the subscription fee or increase thereto and you will
be responsible for paying such subscription fee for the balance of your
subscription. If Company suspends or terminates your account and/or access to
the Company Services because you have breached the Agreement or violated
Applicable Law, you will not be entitled to a refund of any unused portion of
such fees or other payments.
Purchasing The Company Sites Services or Products
In connection with a purchase of any service, subscription
or product on the Company Sites ("Site Product"), you may be required
to provide personal information, including your name, address, telephone
number, e-mail address, credit card and billing information (collectively,
"Personal Financial Information"), to an independent third party
selected by, but not affiliated with, Company (the "Processor").
Where the Processor is responsible for collecting, transmitting and/or processing
your Personal Financial Information and, in some instances, for fulfilling your
order, all payment obligations for Site Products shall be governed by the terms
of use/service and privacy policy(ies) of the Processor. If you make a purchase
from the Company Sites you are warranting that you are authorized to make the
purchase using the form of payment that you provide to the Processor. You must
be 18 years of age or older to purchase a Site Product.
The company makes no warranty and accepts no liability for
any loss or damages whatsoever, relating to or in connection with your
placement of an order for a Site Product with the Processor. The company
provides no refunds for, makes no warranty for, and to the fullest extent
provided by law, accepts no liability regarding purchases you make on the
Company Sites. You are solely responsible for any and all transactions
utilizing your Personal Financial Information, including, but not limited to,
any and all charges. You acknowledge and agree that, to the fullest extent
permitted by law, in the event Processor experiences a data breach that affects
your Personal Financial Information, the Company will in no way be responsible
or liable to you for any such breach.
The Company will not store any record of Personal Financial
Information related to purchases or other transactions you make through the
Company Services. You should therefore maintain records of all your
transactions. If you have any questions regarding your transactions or believe
that there is an error or unauthorized transaction or activity associated with
transactions utilizing your Personal Financial Information, you must contact
the Processor.
Limited Content License
The Company Services are offered for your personal use only
and may not be used for commercial purposes. The Company Services contain
information, text, files, images, videos, sounds, musical works, works of
authorship, software, applications, product names, company names, trade names,
logos, designs, and any other materials or content (collectively,
"Content") of Company, its licensors, or assignors ("Company
Content"), as well as Content provided by users or other third parties. Content
contained in the Company Services is protected by copyright, trademark, patent,
trade secret and other laws and, as between you and Company, Company, its
licensors, or its assignors, own and retain all rights in the Company Content. The
company hereby grants you a limited, revocable, non-sublicensable license to
access and display or perform the Company Content (excluding any software code)
solely for your personal, non-commercial use in connection with using the
Company Services. Except as provided in this Agreement or as explicitly allowed
on the Company Services, you may not copy, download, stream, capture,
reproduce, duplicate, archive, upload, modify, translate, publish, broadcast,
transmit, retransmit, distribute, perform, display, sell, frame or deep link,
make available, or otherwise use any Content contained in the Company Services.
Except as explicitly and expressly permitted by the Company
or by the limited license set forth above, you are strictly prohibited from
creating works or materials (including but not limited to fonts, icons, link
buttons, wallpaper, desktop themes, on-line postcards, montages, mashups and
similar videos, greeting cards and unlicensed merchandise) that derive from or
are based on the Company Content. This prohibition applies regardless of
whether such derivative works or materials are sold, bartered or given away.
Also, you may not either directly or through the use of any device, software,
internet site, web-based service or other means, remove, alter, bypass, avoid,
interfere with, or circumvent any copyright, trademark, or other proprietary
notice marked on the Content contained in the Company Services or any digital
rights management mechanism, device, or other content protection, copy control
or access control measure associated with the Content contained in the Company
Services, including geo-filtering mechanisms. Except as necessary in order to refer
to the Company, its products and services in a purely descriptive capacity, you
are expressly prohibited from using any Company Content in any manner.
You may not, without the Company's written permission,
"mirror" any Contents contained on the Company Sites or any other
server. You may not use the Company Sites for any purpose that is unlawful or
prohibited by the Agreement. You may not use the Company Sites in any manner
that could damage, disable, overburden, or impair the Company Sites, or
interfere with any other party's use and enjoyment of the Company Sites. You
may not attempt to gain unauthorized access to the Company Sites through hacking,
password mining or any other means. The company reserves the right, in its sole
discretion, to terminate your access to the Company Sites, or any portion
thereof, at any time, for any reason or for no reason at all, without prior
notice or any notice.
Restrictions on Use of Company Services
You understand that you are responsible for all Content that
you post, upload, transmit, email or otherwise make available on the Company
Sites or on, through or in connection with the Company Services (collectively,
"User Content"). Additionally, you acknowledge that you have no
expectation of privacy in or confidentiality with respect to your User Content.
Accordingly, please choose User Content carefully.
You agree not to use the Company Services to:
- Post, upload or otherwise transmit or link to Content that
is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit;
pornographic or inclusive of nudity; offensive; excessively violent; invasive
of another's privacy, publicity, contract or other rights; tortious; false or
misleading; defamatory; libelous; hateful; or discriminatory.
- Violate the rights of others including patent, trademark,
trade secret, copyright, privacy, publicity or other proprietary rights.
- Harass or harm another person.
- Exploit or endanger a minor.
- Impersonate or attempt to impersonate any person or entity.
- Introduce or engage in activity that involves the use of
viruses, bots, worms, or any other computer code, files or programs that
interrupt, destroy, or limit the functionality of any computer software or
hardware or telecommunications equipment, or otherwise permit the unauthorized
use of or access to a computer or a computer network.
- Attempt to decipher, decompile, disassemble or reverse
engineer any of the software comprising the Company Sites or the Company Services.
- Interfere with, damage, disable, disrupt, impair, create
an undue burden on, or gain unauthorized access to the Company Services,
including Company's servers, networks or accounts.
- Cover, remove, disable, block or obscure advertisements or
other portions of the Company Services.
- Delete or revise any information provided by or pertaining
to any other user of the Company Services.
- Use technology or any automated system such as scripts,
spiders, offline readers or bots in order to collect or disseminate usernames,
passwords, email addresses or other data from the Company Services, or to
circumvent or modify any security technology or software that is part of the
Company Services.
- Send or cause to send (directly or indirectly) unsolicited
bulk messages or other unsolicited bulk communications of any kind through the
Company Services. If you do so, you acknowledge you will have caused
substantial harm to the Company, but that the amount of harm would be extremely
difficult to measure. As a reasonable estimation of such harm, and by way of
liquidated damages and not as a penalty, you agree to pay Company $50 for each
actual or intended recipient of such communication.
- Solicit, collect or request any personal information for
commercial or unlawful purposes.
- Post, upload or otherwise transmit an image or video of
another person without that person's consent.
- Engage in commercial activity (including but not limited
to advertisements or solicitations of business; sales; contests; sweepstakes;
creating, recreating, distributing or advertising an index of any significant
portion of the Company Content; or building a business using the Company
Content) without Company's prior written consent.
- Using technology or other means to access, index, frame,
or link to The Company Sites (including the Content) that is not authorized by
The Company Sites (including by removing disabling, bypassing, or circumventing
any content protection or access control mechanisms intended to prevent the
unauthorized download, stream capture, linking, framing, reproduction, access
to, or distribution of Company Content);
- Accessing The Company Sites (including the Content)
through any automated means, including "robots," "spiders,"
or "offline readers" (other than by individually performed searches
on publicly accessible search engines for the sole purpose of, and solely to
the extent necessary for, creating publicly available search indices - but not
caches or archives - of The Company Sites and excluding those search engines or
indices that host, promote, or link primarily to infringing or unauthorized
content;
- Use the Company Services to advertise or promote competing
services.
- Use the Company Services in a manner inconsistent with any
and all Applicable Law.
- Attempt, facilitate, induce, aid and abet, or encourage
others to do any of the foregoing.
You will not use the Content, Company Services, or Company
Sites available on or through the Company Services - inclusive of text,
photographs, images, audio/video clips, "look and feel," metadata, or
compilations of the Content, Company Services, and/or Company Sites for the
development of any software program, including, but not limited to, training or
otherwise developing a machine learning or artificial intelligence system or
algorithm.
The company reserves the right, but disclaims any obligation
or responsibility, to remove User Content that violates this Agreement, as
determined by Company, or for any other reason, in Company's sole discretion
and without notice to you. You acknowledge the Company reserves the right to
investigate and take appropriate legal action against anyone who, in Company's
sole discretion, violates this Agreement, including but not limited to,
terminating their user account and/or reporting such User Content, conduct, or
activity to law enforcement authorities.
You acknowledge, consent and agree that Company may access,
preserve or disclose information you provide to the Company Sites, including
User Content and your account registration information, including when Company
has a good faith belief that such access, preservation or disclosure is
necessary in order to: (i) protect, enforce, or defend the legal rights,
privacy, safety, or property of Company, our parents, subsidiaries or
affiliates ("Company Affiliates"), or their employees, agents and contractors
(including enforcement of this Agreement or our other agreements); (ii) protect
the safety, privacy, and security of users of the Company Services or members
of the public including in urgent circumstances; (iii) protect against fraud or
for risk management purposes; (iv) comply with the law or legal process; or (v)
respond to requests from public and government authorities. If Company sells
all or part of its business or makes a sale or transfer of its assets or is
otherwise involved in a merger or transfer of all or a material part of its
business, Company may transfer your information to the party or parties
involved in the transaction as part of that transaction.
Company reserves the right to limit the storage capacity of
User Content. You assume full responsibility for maintaining backup copies of
your User Content, and Company assumes no responsibility for any loss of your
User Content due to its being removed by Company or for any other reason.
User Content on Message Boards and Forums
The Company Sites may offer users the ability to post
messages on message boards, chat areas, bulletin boards, e-mail functions,
forums, and other interactive areas as a part of the Company Services
(collectively, "Forums"), which may be open to the public generally,
to all members of the Company Sites, or to a select group of members to a
specific Forum group. You acknowledge that all Content posted on Forums is User
Content, and by posting on Forums you agree to comply with the rules and restrictions
on User Content set forth above and any other rules specifically applicable to
such Forums. Company reserves the right, but disclaims any obligation or
responsibility, to prevent you from posting User Content to any Forum and to
restrict or remove your User Content from a Forum or refuse to include your
User Content in a Forum for any reason at any time, in Company's sole
discretion and without notice to you.
You acknowledge that messages posted on such Forums are
public, and the Company cannot guarantee the security of any information you
disclose through any Forum; you make such disclosures at your own risk. The
company is not responsible for the content or accuracy of any information
posted on a Forum and shall not be responsible for any decisions made based on
such information.
Your Proprietary Rights in and License to Your User Content
Company does not claim any ownership rights in the User
Content that you post, upload, email, transmit, or otherwise make available
(collectively, "Transmit") on, through or in connection with the
Company Services, except with respect to your unsolicited submissions, as
described under "Unsolicited Submissions" below; provided, however,
that User Content shall not include any Company Content or content owned by a
Company Affiliate. By posting or transmitting any User Content on, through or
in connection with the Company Services, you hereby grant to Company and our
Company Affiliates, licensees, assignees, and authorized users a worldwide,
perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely
sublicensable, transferable (in whole or in part) right (including any moral
rights) and license to use, modify, excerpt, adapt, publish, translate, create
derivative works and compilations based upon, publicly perform, publicly
display, reproduce, sublicense, and distribute such User Content, including
your name, voice, likeness and other personally identifiable information to the
extent that such is contained in User Content, anywhere, in any form and on and
through all media formats now known or hereafter devised, for any and all
purposes including, but not limited to, promotional, marketing, trade or any
non-commercial or commercial purposes. Additionally, Company is free to use any
ideas, concepts, know-how, or techniques contained within such User Content for
any purpose including, but not limited to, developing, manufacturing, marketing
and providing commercial products and services, including Company Services. The
company’s use of such User Content shall not require any further notice or
attribution to you and such use shall be without the requirement of any
permission from or any payment to you or any other person or entity. You hereby
appoint Company as your agent with full authority to execute any document or
take any action Company may consider appropriate in order to confirm the rights
granted by you to Company in this Agreement.
You represent and warrant that: (i) you own the User Content
Transmitted by you on, through or in connection with the Company Services, or
otherwise have the right to grant the license set forth in this Section, and
(ii) the Transmission of User Content by you on, through or in connection with
the Company Services and Third Party Services does not violate the privacy
rights, publicity rights, copyrights, contract rights or any other rights of
any person or entity. You agree to pay for all royalties, fees, and any other
monies owing to any person or entity by reason of the use of any User Content
Transmitted by you on or through the Company Services or Third Party Services.
If you delete your User Content from the Company Sites, to
the extent that Company made use of your User Content before you deleted it,
Company will retain the right to make such pre-existing uses even after your
User Content is deleted. You acknowledge that (i) deletion of your User Content
from the Company Sites will not result in, and Company assumes no
responsibility for, the deletion of such User Content by any third parties who
were provided with or had access to such User Content prior to your deleting it
from the Company Sites, and (ii) termination of your account or your use of the
Company Services will not result in the immediate or automatic deletion of your
User Content consistent with this Agreement.
Removal of Material that Infringes Copyrights
The company respects the intellectual property of others and
requires that our users do the same. Company has a policy that provides for the
termination in appropriate circumstances of subscribers and account holders of
Company Services who are repeat infringers. Company also reserves the right to
remove or disable access to any transmission of Content that infringes the
copyright of any person under the laws of the United States upon receipt of a
notice that substantially complies with the requirements of 17 U.S.C. §
512(c)(3) as set forth above.
If you believe material on Company Services infringes your
copyright.
If you believe that any material residing on or linked to
from Company Services infringes your copyright, you must send Company's
designated Copyright Agent a written notification of claimed infringement that
contains substantially all of the following information: (a) identification of
the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works are covered by a single notification, a representative list
of such works; (b) identification of the claimed infringing material and information
reasonably sufficient to permit us to locate the material on the Company
Services (such as the URL(s) of the claimed infringing material); (c)
information reasonably sufficient to permit us to contact you, such as an
address, telephone number, and an email address; (d) a statement by you that
you have a good faith belief that the disputed use is not authorized by the
copyright owner, its agent, or the law; (e) a statement by you that the above
information in your notification is accurate and a statement by you, made under
penalty of perjury, that you are the owner of an exclusive right that is
allegedly infringed or are authorized to act on the owner's behalf; and (f)
your physical or electronic signature.
If you posted material to Company Services that Company
removed due to a notice of claimed infringement from a copyright owner, Company
will take reasonable steps promptly to notify you that the material has been
removed or disabled. This notice may be by means of a general notice on the
Company Sites or by written or electronic communication to such address(es) you
have provided to Company, if any. You may provide counter-notification in
response to such notice in a written communication that includes substantially
all of the following: (i) 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 access to it was disabled; (ii) a statement
by you, under penalty of perjury, that you have a good faith belief that the
material was removed or disabled as a result of mistake or misidentification of
the material to be removed or disabled; (iii) your name, address, telephone
number, and a statement that you consent to the jurisdiction of the Federal
District Court for the judicial district in which your address is located, or
if your address is outside of the United States, for any judicial district in
which Company may be found, and that you will accept service of process from
the person who provided notification requesting the removal or disabling of
access to the material or such person's agent; and (iv) your physical or
electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who
knowingly makes material misrepresentations in a notification of claimed
infringement or any counter-notification may be liable for damages.
Your Exposure to Others' User Content
You understand that Company does not control the User
Content posted by users via the Company Services and, as such, you understand
you may be exposed to offensive, inaccurate or otherwise objectionable User
Content. Company assumes no responsibility or liability for this type of
Content. If you become aware of any misuse of the Company Services, including
in violation of any "Restrictions on Use of Company Services," please
report it immediately to Company. Company assumes no responsibility for
monitoring the Company Services for inappropriate User Content or user conduct.
If at any time, Company chooses in its sole discretion to monitor the Company
Services, Company nonetheless assumes no responsibility for Content other than
Company Content, no obligation to modify or remove any inappropriate Content,
and no responsibility for the conduct of any user.
Third Party Links and Services
The Company Services may provide, or third parties may
provide, links to other websites, applications, resources or other services
created by third parties ("Third Party Services"). When you engage
with a provider of a Third Party Service, you are interacting with the third
party, not with Company. If you choose to use a Third Party Service and share
information with it, the provider of the Third Party Service may use and share
your data in accordance with its privacy policy and your privacy settings on
such Third Party Service. Company encourages you not to provide any personally
identifiable information to or through any Third Party Service unless you know
and are comfortable with the party with whom you are interacting. In addition,
the provider of the Third Party Service may use other parties to provide
portions of the application or service to you, such as technology, development
or payment services. Company is not responsible for and makes no warranties,
express or implied, as to the Third Party Services or the providers of such
Third Party Services (including, but not limited to, the accuracy or
completeness of the information provided by such Third Party Service or the
privacy practices thereof). Inclusion of any Third Party Service or a link
thereto on the Company Services does not imply approval or endorsement of the
Third Party Service. Company is not responsible for the content or practices of
any websites other than the Company Sites, even if the website links to the
Company Sites and even if it is operated by a Company Affiliate or a company
otherwise connected with the Company Sites. By using the Company Services, you
acknowledge and agree that Company is not responsible or liable to you for any
content or other materials hosted and served from any website other than the
Company Sites. When you access Third Party Services, you do so at your own
risk.
Company Terms of Sale
Certain products and services may from time to time be made
available to you through the Company Services. The products and services that
are offered for sale by Company or its corporate affiliates are each referred
to as an "Offering". Terms related to a specific product or service
will accompany the Offering. In addition, these Terms of Sale apply to all
Offerings. To make a purchase on Company Services, you must be a registered
Company user. Company sells its products only to those users who can legally make
purchases with a credit card. You must be eighteen years of age to make a
purchase on the Company Services, or, if you are under the age of eighteen but
over the age of thirteen, you may make purchases on the Company Services with
the knowledge and consent of your parent or legal guardian. Company reserves
the right to refuse or cancel orders or terminate accounts, at any time in its
sole discretion. We may accept various credit cards at any different times.
However, by submitting an order through the Company Services, you authorize
Company, or its designated payment processor, to charge the account you specify
for the purchase amount using your credit card if we accept it. All payments
are to be made in United States Dollars.
Member Disputes
You are solely responsible for your interactions with other
users of the Company Sites and the Company Services, providers of Third Party
Services or any other parties with whom you interact on, through or in
connection with the Company Services. Company reserves the right, but has no
obligation, to become involved in any way with any disputes between you and
such parties.
Trademarks
Company, the Company logo, and other Company marks,
graphics, logos, scripts, and sounds are trademarks of Company. None of the
Company trademarks may be copied, downloaded, or otherwise exploited.
Privacy
For information about Company's policies and practices
regarding the collection and use of your information, please read Company's https://rugerfitnessblog.blogspot.com/p/privacy-policy.html
Disclaimers
THE COMPANY SERVICES ARE PROVIDED "AS-IS" AND
"AS AVAILABLE" AND COMPANY DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC
RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE COMPANY SERVICES. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY
WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF
PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, COMPANY MAKES NO WARRANTY THAT YOUR USE OF THE COMPANY SERVICES WILL
BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE COMPANY
SERVICES WILL BE CORRECTED, THAT THE COMPANY SERVICES OR THE SERVERS ON WHICH
THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT
ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE COMPANY
SERVICES OR THIRD PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER
CONTENT OR THIRD PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR
COMPLETE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY WILL
NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF
DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE
COMPANY SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF
THE COMPANY SERVICES, ATTENDANCE AT A COMPANY EVENT, ANY MATERIAL DOWNLOADED OR
OTHERWISE OBTAINED IN CONNECTION WITH THE COMPANY SERVICES, ANY USER CONTENT,
ANY THIRD PARTY ADVERTISEMENT OR THIRD PARTY SERVICE TRANSMITTED ON, THROUGH OR
IN CONNECTION WITH THE COMPANY SERVICES, OR THE CONDUCT OF ANY USERS OF THE
COMPANY SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD
PARTY ADVERTISEMENTS, THIRD PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED
BY ANY THIRD PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE COMPANY
SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH,
MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME
RESPONSIBILITY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, FOR THE ENTIRE
COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER
PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF
THE COMPANY SERVICES.
Limitation on Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY'S LIABILITY TO YOU
FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL
TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY
SERVICES DURING THE TERM OF YOUR USE OF THE COMPANY SERVICES. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, COMPANY WILL NOT BE LIABLE TO YOU OR ANY
THIRD PARTY FOR ANY DAMAGES OTHER THAN THE AMOUNT PAID, IF ANY, BY YOU TO
COMPANY FOR THE COMPANY SERVICES DURING THE TERM OF YOUR USE OF THE COMPANY
SERVICES, INCLUDING ANY OTHER GENERAL, DIRECT, INDIRECT, COMPENSATORY,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, AND
INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR
INABILITY TO USE THE COMPANY SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING
OUT OF COMPANY'S ACTS OR OMISSIONS OR YOUR USE OF COMPANY SITES OR THE COMPANY
SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN
INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY
PERSON'S ABILITY TO ACCESS ANY PORTION OF COMPANY SITES OR THE COMPANY
SERVICES.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED
LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY
OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
DAMAGES. FOR CLARIFICATION, THIS AGREEMENT DOES NOT LIMIT COMPANY’S LIABILITY
FOR FRAUD, FRAUDULENT MISREPRESENTATION, DEATH, OR PERSONAL INJURY TO THE
EXTENT THAT APPLICABLE LAW WOULD PROHIBIT SUCH A LIMITATION.
United States Jurisdiction
Company provides the Company Services in the United States
of America. Company does not represent that the Company Content or the Company
Services are appropriate (or, in some cases, available) for use in other
locations. If you use the Company Sites or the Company Services from a
jurisdiction other than the United States, you agree that you do so of your own
initiative, and you are responsible for complying with local laws as applicable
to your use of the Company Sites or the Company Services.
Not all of the Site Products are available worldwide or
nationwide, and Company makes no representation that you will be able to obtain
any Site Product in any particular jurisdiction, either within or outside of
the United States.
U.S. Export Controls
Software available in connection with the Company Services
is further subject to United States export controls. No such software may be
downloaded from the Company Services or otherwise exported or re-exported in
violation of U.S. export laws. Downloading or using such software is at your
sole risk.
Informal Dispute Resolution Procedure, Arbitration Agreement
and Class Action Waiver so that Company can maintain the ability to offer you
and other users the Company Service, you and Company agree to the following
mechanisms for resolving any Dispute between us:
a. Dispute. The term "Dispute" is to be given the
broadest possible meaning that will be enforced, and shall include any dispute,
claim, demand, count, cause of action, or controversy between you and Company,
whether based in contract, statute, regulation, ordinance, tort (including, but
not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or
any other intentional tort), or any other legal or equitable theory. The term
"Dispute" specifically includes, but is not limited to, any disputes,
actions, claims, or controversies between you and Company that arise from or in
any way relate to or concern any Content, the Company Sites or services
provided by Company including but not limited to the Company Services (as
defined above), this Arbitration Section, any other aspect of this Agreement or
any prior versions of this Agreement (including their applicability and their
conformance to applicable law), and any disputes relating to telephonic, text
message, or any other communications either of us received from the other. The
only exceptions to this Arbitration Section are that: (i) each of you and
Company retains the right to sue in small claims court; (ii) each of you and
Company may bring suit in court against the other to enjoin infringement or
other misuse of intellectual property rights; and (iii) each of you and Company
may bring suit in court to determine the enforceability of Sub-Section b.
and/or Sub-Section k. of this Arbitration Section.
b. Mandatory Informal Dispute Resolution Process. You and
Company agree that good-faith, informal efforts to resolve disputes often can
result in a prompt, cost-effective, and mutually beneficial outcome. Therefore,
if either you or Company wants to bring or resolve a Dispute, you or Company
must follow the mandatory informal dispute resolution process as a precondition
to the ability to file an arbitration demand or lawsuit:
i. Notice. You or Company must first send to the other a
written Notice of Dispute ("Notice") that sets forth the name,
address, and contact information of the party giving notice, the specific facts
giving rise to the Dispute, the Company Service to which the Notice relates,
and the relief requested, including damages, if any, and a detailed calculation
for them. Your Notice also must contain your email address and (if different)
the email address associated with your Company account (if you have an account
with Company). Our Notice must also be sent to your email address associated
with your Company account (if you have an account with Company), and you
consent to receive any such Notice as part of these dispute resolution terms.
You and we must include in any Notice to each other a personally signed
statement (from you or us—not from your or our counsel) verifying the accuracy
of the contents of the Notice, and if you are represented by counsel, your
signed statement authorizing Company to disclose your Company account details
to your attorney while seeking to resolve your claim.
ii. Good Faith Effort to Informally Resolve Dispute. After
receipt of a completed Notice, the parties shall engage in a good faith effort
to resolve the Dispute for a period of 60 days (which can be extended by
agreement). You and Company agree that, after receipt of the completed Notice,
the recipient may request an individualized telephone or video settlement
conference and both parties will personally attend (with counsel, if
represented). You and Company agree that the parties (and counsel, if represented)
shall work cooperatively to schedule the conference at the earliest mutually
convenient time and to seek to reach a resolution. If you and Company do not
reach an agreement to resolve the issues identified in the Notice within 60
days after the completed Notice is received (or a longer time if agreed to by
the parties), you or Company may commence a proceeding as noted below.
c. Arbitration Agreement. If you and we do not resolve the
Dispute within 60 days of the submission of the Notice in accordance with the
Informal Dispute Resolution Procedures, Company, including its Affiliates,
agents, employees, predecessors in interest, successors, and assigns, and you
agree that any Dispute between you and Company, regarding any aspect of your
relationship with Company, will be resolved in a binding, confidential,
individual and fair arbitration process, and not in court, subject to the
exceptions noted in Sub-Section g. below of this Arbitration Section. Thus,
subject to those exceptions, you and Company agree to give up the right to sue
in court, including that you and Company agree to waive their right to a jury
trial.
d. Controlling Law Regarding Arbitration Process and
Agreement to Arbitrate. This Agreement evidences a transaction in interstate
commerce, and thus the Federal Arbitration Act ("FAA"), 9 U.S.C. §§
1–16, governs the interpretation and enforcement of the provisions in this
Arbitration Section related to the arbitration process. The agreements in this
Arbitration Section shall survive termination of the Agreement. Any original
action to compel arbitration under Section 4 of the FAA (or analogous state
law) must be brought in a state or federal court located in New York City,
unless mandated by law to be filed in another state or federal court. If the
FAA is found to not apply to any issue regarding the interpretation or
enforcement of the parties’ agreement to arbitrate, then that issue shall be
determined by the laws of the State of New York. Any arbitration between you
and Company will be administered by the American Arbitration Association
("AAA") pursuant to their then-applicable rules, including their mass
arbitration supplementary rules and mass arbitration fee schedule, as
applicable, as modified by this Arbitration Section. AAA’s rules and fee
schedules can be found at www.adr.org. Except in the event of a Mass Filing as
described in Sub-Section k. below of this Arbitration Section, the arbitration
shall be conducted by a single, neutral arbitrator. If you and Company cannot
agree on an arbitrator, the arbitrator will be appointed pursuant to the AAA’s
rules.
e. Alternative Arbitration Provider. If AAA is not available
to arbitrate, including because it is not able to administer the arbitration(s)
consistent with the rules, procedures, and terms of this Arbitration Section,
including those described in Sub-Section k., the parties will select an
alternative arbitration provider. If the parties cannot agree on an appropriate
alternative arbitration provider, then the parties will ask a court of
competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5 that
is able to administer the arbitration(s) consistent with the rules, procedures,
and terms of this Arbitration Section, including, as applicable, Sub-Section k.
of this Arbitration Section will govern to the extent it conflicts with the
arbitration provider’s rules. For arbitrations before the AAA, the AAA’s
Consumer Arbitration Rules and Optional Rules For Emergency Measures of
Protection shall apply.
f. Filing Fee and Costs. The initiating party must pay all
filing fees for the arbitration. Your and Company's responsibility to pay other
administrative and arbitrator costs will be as set forth in the applicable
arbitration provider’s rules, unless the arbitrator determines the claims are
frivolous. If a claim is determined to be frivolous, the claimant is
responsible for reimbursing the respondent for its portion of all such
administrative, hearing, and/or other fees incurred as a result of the frivolous
claim.
g. Waiver of Fees and Costs. You may qualify for a waiver of
certain arbitration costs under the applicable arbitration provider’s rules or
other applicable law. If you meet the standard for proceeding in forma pauperis
in federal court, the state court of your residence, or the state court where
the arbitration is brought, cannot obtain a waiver from the arbitration
provider of any filing fees you are required to pay, and the arbitration
provider refuses to administer the arbitration without your payment of said
fees, Company will pay the filing fees for you.
h. Enforceability of Certain Provisions of this Arbitration
Section. Notwithstanding Sub-Section c. through Sub-Section g. of this
Arbitration Section, a claim regarding enforceability of any portion of
Sub-Section b. and/or Sub-Section k. of this Arbitration Section must be
brought in federal or state court. Courts shall have the exclusive authority to
determine: (i) the enforceability of any or all of the procedures set forth in
Sub-Section b. and/or Sub-Section k. of this Arbitration Section; and (ii) if
any or all the procedures set forth in Sub-Section b. and/or Sub-Section k. of
this Arbitration Section are unenforceable, whether that or those procedures
are severable from the remaining provisions of this Arbitration Section and the
consequences of said severance. If the court determines that Sub-Section b. of
this Arbitration Section is enforceable, it will also decide whether the party
seeking to arbitrate the Dispute complied with the process in Sub-Section b. of
this Arbitration Section.
i. You and Company also agree to give up the ability to seek
to represent, in a class action or otherwise, anyone but each of you and
Company, including in arbitration and in state or federal court. Therefore:
YOU AND COMPANY 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, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE
ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF
j. You understand there is no judge or jury in arbitration,
and court review of an arbitration award is limited. An arbitrator must follow
the dispute resolution process described in this Arbitration Section. Subject
to Sub-Section h. of this Arbitration Section, the arbitrator has exclusive
authority to resolve all issues relating to the parties’ Dispute. The
arbitrator will have the authority to grant motions dispositive of all or part
of any claim. The arbitrator can award on an individual basis the same damages
and relief as a court (including injunctive and declaratory relief, or
statutory damages); provided that they are recoverable under this Agreement.
The arbitrator will 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 award of the arbitrator is final
and binding upon you and us.
k. Related Cases and Mass Filings. If your Notice involves
claims similar to those of at least 25 other customers, and if you and those
other customers are represented by the same lawyers, or by lawyers who are
coordinating with each other, or if Company asserts 25 or more similar demands
for arbitration or counterclaims against similarly-situated parties, within a
period of 60 days or otherwise close in proximity, you and we agree that these
claims will be related ("Related Cases"), and this shall be called a
"Mass Filing." The following procedures will apply to a Mass Filing:
i. Acknowledgment of Related Cases procedure. If you or
Company, or your or our counsel, files a demand for arbitration that has
Related Cases, then you and we agree that the demand for arbitration shall be
subject to the additional protocols set forth in this Sub-Section k. of this
Arbitration Section. If the parties disagree as to whether a series of filings
fits within the definition of Mass Filing above, the arbitration provider shall
resolve the disagreement. You and we also acknowledge that the adjudication of
the dispute may be delayed and that any applicable statute of limitations shall
be tolled from the time of filing of the demand for arbitration and pending
resolution of the proceedings described in this Sub-Section k. of this
Arbitration Section.
ii. Bellwether Arbitrations. Bellwether proceedings are
encouraged by courts and arbitration administrators where there are multiple
disputes involving similar claims against the same or related parties. The
parties shall select ten individual arbitration claims (five per side),
designated the "Initial Test Cases," to proceed to arbitration. Only
the Initial Test Cases shall be filed with the arbitrator. All other claims
shall be held in abeyance. This means that the filing fees will be paid only
for the Initial Test Cases; for all other demands for arbitration, the filing
fees (together with any arbitrator consideration of the other demands) will be
in abeyance, and neither You nor Company will be required to pay any such
filing fees. You and Company also agree that neither you nor we shall be deemed
to be in breach of this Arbitration Section for failure to pay any such filing
fees, and that neither you nor we shall be entitled to any contractual,
statutory, or other remedies, damages, or sanctions of any kind for failure to
pay any such filing fees. If, pursuant to this subsection, a party files
non-Bellwether Arbitrations with the arbitration provider, the parties agree
that the arbitration provider shall hold those demands in abeyance and not
refer them to the arbitrator pending resolution of the Initial Test Cases.
Unless the claims are resolved in advance or the schedule is extended, the
arbitrators will render a final award for the Initial Test Cases within 120
days of the initial pre-hearing conference.
iii. Global Mediation. Following the resolution of the
Initial Test Cases, the parties agree to engage in a global mediation of all
the remaining individual arbitration claims ("Global Mediation"),
deferring any filing costs associated with the non-Initial Test Cases until the
Initial Test Cases and subsequent Global Mediation have concluded. After the
final awards are provided to the mediator in the Initial Test Cases, the
mediator and the parties shall have 90 days to agree upon a substantive
methodology and make an offer to resolve the outstanding cases. If the Parties
are unable to resolve the outstanding claims during the Global Mediation, the
unresolved Disputes may then be administered by the arbitration provider
pursuant to this Agreement’s Batch Arbitration provision below and the
arbitrator’s fee schedule for mass filings, unless the parties mutually agree
otherwise in writing. You and we also acknowledge that any applicable statute
of limitations shall be tolled pending resolution of the Bellwether Arbitration
and Global Mediation process.
iv. Batch Arbitration. To increase the efficiency of
administration and resolution of arbitrations, you and Company agree that in
the event the Bellwether Arbitration and Global Mediation processes described
above do not resolve the Disputes, the arbitration provider will (1) administer
the remaining arbitration demands in batches of 50 demands per batch; (2)
appoint one arbitrator for each batch; and (3) provide for the resolution of
each batch as a single consolidated arbitration with one set of filing and
administrative fees due per side per batch, one procedural calendar, one
hearing (if any) in a place to be determined by the arbitrator, and one final
award ("Batch Arbitration"). The final award will provide for
individual merit decisions for each separate claimant within the single batch
arbitration award. If the arbitration provider will not administer the Batch
Arbitration with one set of filing and administrative fees due per side per
batch, then the arbitration provider’s mass arbitration fee schedule shall
apply. AAA’s mass arbitration fee schedule is available on its website at
www.adr.org/rules. For mass arbitrations before any other arbitration provider,
if applicable, you and Company agree that its mass arbitration fee schedule
shall apply, as necessary.
v. Opting Out. If your claim is not resolved as part of the
Bellwether Arbitration and Global Mediation process outlined above, the parties
shall also have the opportunity to opt out of arbitration and bring the pending
Dispute to the state or federal courts located in New York City, unless
mandated by law to be filed in another state or federal court. The parties have
30 days of the failed Global Mediation process to opt out. This shall not
provide an opportunity for either party to opt out of arbitration for other
claims.
vi. Enforcement of Subsection. A Court of competent
jurisdiction shall have the power to enforce Sub-Section k. of this Arbitration
Section, including by injunctive, declaratory, or other relief.
l. Live Testimony. You must appear to testify at any
arbitration hearing personally, virtually, or in another manner authorized by
law or the arbitration provider. You agree that if you fail to appear in one of
these forms to testify, you consent to have the arbitrator order that the case
be closed immediately.
m. Discovery and Information Exchange. Regardless of how the
arbitration proceeds, each of you and Company shall cooperate in good faith in
the exchange of non-privileged documents and information as necessary in
accordance with the arbitration provider’s rules.
n. Attorney’s Fees and Fee Shifting. Each of you and Company
may incur attorneys’ fees during the arbitration. Each side agrees to pay his,
her or its own attorneys’ fees unless the claim(s) at issue permit(s) the
prevailing party to be paid its attorneys’ fees, and in such instance, the fees
awarded shall be determined by the applicable law(s).
o. Restrictions on Forms of Relief. The arbitrator may award
declaratory or injunctive relief only in favor of the individual party seeking
relief, only to the extent necessary to provide relief warranted by that
party’s individual claim, only as permitted by applicable law, and only to the
extent that declaratory and injunctive relief are permitted by this Agreement.
The arbitrator shall have no authority to award punitive, exemplary, multiplied
or consequential damages or any other relief except those allowed under the law
and this Agreement, including Limitation of Liability provisions. The
arbitrator also may not order you or Company to pay any monies to or take any
actions with respect to persons other than you or Company, respectively, unless
you or Company explicitly consents in advance, after an arbitrator is selected,
to permit the arbitrator to enter such an order, as applicable. Further, unless
you and Company expressly agree, or subject to the provisions of Sub-Section k.
above of this Arbitration Section, the arbitrator may not consolidate other
persons’ claims with yours or ours and may not otherwise preside over any form
of a representative, multi-claimant or class proceeding.
p. Confidentiality. You and Company agree to maintain the
confidential nature of the arbitration proceeding and shall not disclose the
fact of the arbitration, any documents exchanged as part of any mediation,
proceedings of the arbitration, the arbitrator’s decision and the existence or
amount of any award, except as may be necessary to prepare for or conduct the
arbitration (in which case anyone becoming privy to confidential information
must undertake to preserve its confidentiality), or except as may be necessary
in connection with a court application for a provisional remedy, a judicial
challenge to an award or its enforcement, an order confirming the award, or
unless otherwise required by law or court order. In keeping with the
confidential nature of the arbitration, you and Company agree that an order
confirming the award is only necessary if the obligations of the award have not
been performed. Therefore, before taking any steps to confirm the arbitration
award, the party seeking confirmation of the award must give the other party
notice of its intention to confirm the award. If the party who would be the
respondent in any such confirmation proceeding performs its obligation under
the terms of the arbitration award within 15 business days of such notice, the
party who gave notice of its intent to confirm the award shall not seek to
confirm or otherwise enforce the award.
q. Severability of Portions of this Arbitration Section.
With the exception of Sub-Section i. and Sub-Section k. of this Arbitration
Section (i.e., the waiver of the ability to proceed on behalf of multiple
claimants or a purported class and the Mass Filing procedure), if any part of
this Arbitration Section is deemed invalid, unenforceable, or illegal, then the
balance of this Arbitration Section shall remain in effect and be construed in
accordance with its terms as if the invalid, unenforceable, or illegal
provision were not contained. If, however, either or both Sub-Section i. or/and
Sub-Section k. of this Arbitration Section is found invalid, unenforceable or
illegal, then the remainder of this Arbitration Section and this paragraph
shall be null and void, but the rest of this Agreement, including the
provisions governing in which court actions against Company must be pursued and
the choice of governing law will remain in effect and apply to any claim that,
for this or any other reason, proceeds in court rather than in arbitration.
r. Court Proceedings. If a court issues a decision
precluding or refusing to compel arbitration of any Dispute, the Dispute must
be brought in the state or federal courts located in New York City, unless
otherwise mandated by law to be filed in another state or federal court. For
Disputes deemed not to be subject to arbitration, neither you nor Company shall
be precluded from participating in a class-wide settlement of those claims if
brought by another Company user or third party.
Governing Law
The Agreement will be governed by, and construed in
accordance with, the laws of the State of New York, without regard to its
conflict of law provisions.
Except with respect to Disputes to be resolved through the
process in accordance with the Arbitration Agreement contained above, you and
Company agree to submit to the exclusive jurisdiction of the federal or state
courts located in New York, New York, unless otherwise mandated by law, to
resolve any Dispute arising out of the Agreement or the Company Services. YOU
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO,
ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION YOU OR WE MAY HAVE
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE COMPANY SITES OR THE COMPANY
SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION
ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
Indemnity
You agree to indemnify and hold Company, its Company
Affiliates, subcontractors and other partners, and their respective officers,
agents, partners and employees, harmless from any loss, liability, claim, or
demand, including, but not limited to, reasonable attorneys' fees, made by any
third party due to or arising out of or in connection with YOUR BREACH OF YOUR
REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION
OF THIS AGREEMENT OF USE OR ANY APPLICABLE LAW; YOUR USE OF THE COMPANY
SERVICES AND/OR THE CONTENT IN VIOLATION OF THIS AGREEMENT; INFORMATION OR
CONTENT POSTED OR TRANSMITTED THROUGH YOUR AUTHORIZED DEVICE OR ACCOUNT, EVEN
IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET,
TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR ENTITY
OR DEFAMES ANY PERSON OR ENTITY; AND ANY MISREPRESENTATION MADE BY YOU. YOU
WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN COMPANY'S DEFENSE OF ANY
CLAIM. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE
DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU,
AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN
CONSENT OF COMPANY.
Unsolicited Submissions
Company does not knowingly accept, via the Company Services
or otherwise, unsolicited submissions including, without limitation,
submissions by you of blog ideas, articles, scripts, story lines, fan fiction,
characters, drawings, information, suggestions, proposals, ideas or concepts.
Company requests that you do not make any unsolicited submissions. Any
similarity between an unsolicited submission and any elements in any Company or
Affiliated Company creative work including, without limitation, a film, series,
story, title or concept would be purely coincidental. If you do send any
submissions to Company via the Company Services that are unsolicited (including
but not limited to any Forum), however, you agree that (i) your unsolicited
submissions are not being made in confidence or trust and that by making such
submissions no contractual or fiduciary relationship is created between you and
Company; (ii) any such unsolicited submissions and copyright become the
property of and will be owned by Company (and are not User Content licensed by
you to Company under "Your Proprietary Rights in and License to Your User
Content") and may be used, copied, sublicensed, adapted, transmitted,
distributed, publicly performed, published, displayed or deleted as Company
sees fit; (iii) you are not entitled to any compensation, credit or notice
whatsoever in connection with such submissions; and (iv) by sending an
unsolicited submission you waive the right to make any claim against Company or
Company Affiliates relating to any unsolicited submissions by you, including,
without limitation, unfair competition, breach of implied contract or breach of
confidentiality.
Employment Opportunities
Company may, from time to time, post Company employment
opportunities on the Company Services and/or invite users to submit resumes to
it. If you choose to submit your name, contact information, resume and/or other
personal information to Company in response to employment listings, you are
authorizing Company to utilize this information for all lawful and legitimate
hiring and employment purposes. Company also reserves the right, at its sole
discretion, to forward the information you submit to its Company Affiliates for
legitimate business purposes. Nothing in this Agreement or contained in the
Company Services will constitute a promise by Company to contact, interview,
hire or employ any individual who submits information to it, nor will anything
in this Agreement or contained in the Company Services constitute a promise
that Company will review any or all of the information submitted to it by users
of the Company Services.
If you see other parties violating this Agreement, we would
appreciate it if you would let us know here
Similarly, the failure of Company to exercise or enforce any
right or provision of this Agreement will not operate as a waiver of such right
or provision. If we fail to act in response to a violation of this Agreement,
you should not assume that we do not object to the violation or even that we
are aware of it. In addition, you may not construe a waiver of any provision of
this Agreement with respect to any party as a waiver of that provision (or any
other provision) with respect to either that party or any other party. Further,
Company's decision to delay exercising or enforcing any right or remedy under
this Agreement shall not constitute a waiver of such right or remedy. Even if
Company acts in a way that appears to you to be inconsistent with this Agreement,
Company's action shall not be deemed a waiver or constructive amendment of this
Agreement.
The Section titles in this Agreement are for convenience
only and have no legal or contractual effect. This Agreement operates to the
fullest extent permissible by law. Except as otherwise expressly provided
herein, if any provision of this Agreement is unlawful, void or unenforceable,
that provision is deemed severable from this Agreement and does not affect the
validity and enforceability of any remaining provisions.
You agree that any notices the Company may be required by
Applicable Law to send to you will be effective upon Company's sending an
e-mail message to the e-mail address you have on file with Company or
publishing such notices on the informational page(s) of the Company Sites.
Additionally, from time to time, we may communicate with you about the Company
Services and this Agreement electronically (e.g., emails to your registered
email address, notices on the Company Sites, order progress tracking). You consent
to receive electronic communications from Company and further agree that any
notices, agreements, disclosures, and other communications that we send to you
electronically will satisfy any applicable legal notification requirements. We
recommend that you keep a copy of any electronic communications we send to you
for your records.
You agree that no joint venture, partnership, employment, or
agency relationship exists between you and Company as a result of this
Agreement or your use of the Company Services. A printed version of this
Agreement and of any notice related to it shall be admissible in judicial or
administrative proceedings based upon or relating to this Agreement to the same
extent as other business documents and records originally generated and
maintained in printed form.
Nothing contained in this Agreement limits Company's right
to comply with governmental, court and law enforcement requests or requirements
relating to your use of the Company Services or information provided to or
gathered by us in connection with such use.
This Agreement, along with the Privacy Policy and any other
policies expressly incorporated into this Agreement by reference, constitute
the entire agreement between you and Company with respect to the subject matter
hereof and supersede all prior or contemporaneous written or oral agreements
between the us with respect to the subject matter hereof. This Agreement may
not be amended, nor any obligation waived, without Company's written
authorization.
Please contact us at: https://rugerfitnessblog.blogspot.com/p/privacy-policy.html
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE
PROVISIONS CONTAINED ABOVE.
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