THIS WEBSITE AND ANY OTHER WEBSITES OF MAILEXPRESS.COM, CLEARMAIL INC., ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE” OR THE “SITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY CLEARMAIL, INC. (“COMPANY,” “WE,” “OUR” OR “US”). THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED, BROWSED OR CLICKED ON THE WEBSITE.
(2) you are of legal age to form a binding contract with Company, and
Please note that the Agreement is subject to change by Company in its sole discretion at any time due to changes to the Services, changes in the law, or for any other commercially reason. Please regularly check the Website to view the then-current terms.
1. USE OF THE SERVICES.
1.1 Description of Services. Company provides an email marketing platform and services to users, who collect and manage opt-in email addresses, send emails to these addresses, and analyze the results.
1.2 Company Property. The Website, the Application, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws. You understand that Company Properties are evolving. You acknowledge and agree that Company may update the Company Properties with or without notifying you.
1.3 License. Subject to your compliance with the Agreement, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use the Application on your electronic device or computer that you own or control and to run the Application solely for your own personal or business purposes.
1.4 Restrictions. The rights granted to you in the Agreement are subject to the following restrictions:
(a) you shall not sub-license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website,
(b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company;
(c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks;
(d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law;
(e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
(f) you shall not access Company Properties in order to build a similar or competitive website, application or service;
(g) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and
(h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Agreement. Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property might terminate the licenses granted by Company pursuant to the Agreement.
1.5 Third-Party Materials. As a part of Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
2.1 Registration Data. In registering an Account, you agree to:
(a) provide true, accurate, current and complete information about yourself as prompted by the registration form including, without limitation, your email address or mobile telephone number (the “Registration Data”);
(b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete;
(c) be at least eighteen (18) years old; or of legal age to form a binding contract; and
(d) not be a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof). YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY FROM ANY THIRD-PARTY CLAIMS, LIABILITY, DAMAGES OR COSTS ARISING FROM YOUR PROVIDING COMPANY WITH REGISTRATION DATA THAT IS UNTRUE, INACCURATE, NOT CURRENT OR INCOMPLETE. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.
You may not share your username or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security. You are responsible and liable for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors.
2.2 Registering Your Account. In order to access certain features of Company Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Company Properties (“Account”). Company offers email newsletters and promotional emails as part of the account services. You can unsubscribe from them anytime.
2.3 Your Account. You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement.
2.4 Permission to Access Account. From time to time, you may require assistance from the Company to modify the configuration of your Account. You hereby grant your consent to the Company to access your Account to modify the configuration of your Account, at your request, on your behalf.
2.5 Equipment and Software. You are solely responsible for all your equipment and software necessary to connect to Company Properties, including but not limited to, a mobile device that is suitable to connect with and use Company Properties. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing Company Properties.
3. RESPONSIBILITY FOR CONTENT.
3.2 No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen User Content, including Your Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Company has no obligation to store any of Your Content that you Make Available on Company Properties. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion.
4.1 Company Properties. Except with respect to Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Company Properties.
4.2 Your Content. Company does not claim ownership of Your Content. However, when you post or publish Your Content on or in Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
You agree that we may share non-personal information with certain third parties, including the media, industry observers, marketing and advertising partners, vendors, customers, potential customers, and partners. For example, without limitation, we disclose mobile search trends, email open rates by industry, campaign best practices or the number of users that have been exposed to, or clicked on, our Website or evaluated or purchased our products and services.
4.3 License to Your Content. You grant Company a perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Company Properties. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Company Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties.
5. USER CONDUCT.
5.1 Cheating and Hacking. You agree that you will not, under any circumstances:
(a) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Company Properties or any quiz or game experience;
(b) Interfere with or damage Company Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Modify or cause to be modified any files that are a part of Company Properties;
(d) Disrupt, overburden, or aid or assist in the disruption or overburdening of:
- (i) any computer or server used to offer or support Company Properties; or
- (ii) the enjoyment of Company Properties by any other person;
(e) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Company Properties, or other attempts to disrupt Company Properties or any other person’s use or enjoyment of Company Properties;
(f) Attempt to gain unauthorized access to Company Properties, accounts registered to others, or to the computers, servers or networks connected to Company Properties by any means other than the user interface provided by Company, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Company Properties;
(g) Access, tamper with or use non-public areas of Company Properties, Company’s computer systems, or the technical delivery systems of Company’s providers;
(h) Attempt to probe, scan, or test the vulnerability of any Company Property, system or network, or breach any security or authentication measures;
(i) Disrupt or interfere with the security of, or otherwise cause harm to, Company Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Company Properties or any affiliated or linked sites; or
(j) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect Company Properties.
5.2 General. In connection with your use of Company Properties, you shall not:
(a) Make Available any Content that, in Company’s sole discretion
- (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable;
- (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or
- (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Company personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; or
(g) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Company may, but is not obligated to, monitor or review Company Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Company does not generally monitor user activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Agreement, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
These payment terms apply to your purchase and you agree to them:
(a) Charges. If there is a charge associated with a portion of the Services, you agree to pay that charge. The price stated for the Services excludes all applicable taxes and currency exchange. You are solely responsible for paying such taxes or other charges. Taxes are calculated based on your location at the time your Account was registered. We may suspend or cancel the Services if we do not receive an on time, full payment from you. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of your account and its content. Connecting to the Internet via a corporate or other private network that masks your location may cause charges to be different from those displayed for your actual location.
(b) Your Billing Account. To pay the charges for a Service, you will be asked to provide a payment method at the time you sign up for that Service. You can access and change your billing information and payment method on your Account management website. Additionally, you agree to permit the Company to use any updated account information regarding your selected payment method provided by your issuing bank or the applicable payment network. You agree to promptly update your account and other information, including your email address and payment method details, so we can complete your transactions and contact you as needed in connection with your transactions.
(c) Billing. By providing the Company with a payment method, you (i) represent that you are authorized to use the payment method you provided and that any payment information you provide is true and accurate; (ii) authorize the Company to charge you for the Services or available content using your payment method; and (iii) authorize the Company to charge you for any paid feature of the Services you choose to sign up for or use while these Terms are in force. We may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you have approved, and we will notify you in advance of any change in the amount to be charged for recurring subscription Services. We may bill you at the same time for more than one of your prior billing periods for amounts that haven't previously been processed.
(d) Recurring Payments. When you purchase the Services on a subscription basis (monthly or annually), you agree that you are authorizing recurring payments, and payments will be made to the Company by the method and at the recurring intervals you have agreed to, until the subscription for that Service is terminated by you or by the Company. You must cancel your Services before the next billing date to stop being charged to continue your Services. By authorizing recurring payments, you are authorizing the Company to store your payment instrument and process such payments. Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, the Company reserve the right to collect any applicable payment, return item, rejection or insufficient funds fee.
(e) Refund Policy. All purchases are final and non-refundable. You may notify the Company of your intent to terminate your Account at any time; your cancellation will become effective at the end of your current billing period and no future payments will be charged. No full nor partial refunds will be issued for the days between the termination and the end of the current billing period; no exception. However, your use of the Services and benefits will continue for the remainder of the current billing period unless you request an immediate termination.
If you believe the Company has charged you in error, you must contact us within 90 days of such charge. No refunds will be given for any charges more than 90 days old. We reserve the right to issue refunds or credits at our sole discretion.
8. VIRTUAL CREDITS AND POINTS.
In the Services, the Company may award, in its discretion, “virtual currency” including, but not limited to, virtual coins, tokens, credits or points, all for use in the Company Properties, such as trivia games or prize giveaways (“Virtual Credits”). The Company prohibits and does not recognize any purported transfers of Virtual Credit or other virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell any Virtual Credits for “real” money, or exchange such Virtual Credits for value of any kind outside of the Services. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination. Virtual Credits are not legal tender, and do not have any equivalent to any U.S. dollar amount and may not be converted into U.S. dollars. Virtual Credits may be revoked, rescinded, or otherwise cancelled at any time, with or without notice, including in the event you violate this Agreement.
9. THIRD-PARTY SERVICES.
9.1 Third-Party Properties and Promotions. Company Properties may contain links to third-party websites and applications (“Third-Party Properties”) or display promotions or advertisements for third parties, such as promotions or advertisements for products and services made available by third parties (“Third-Party Promotions”). We do not provide, own or control any of the products or services that you can access through Third-Party Promotions. When you click on a link to a Third-Party Property or Third-Party Promotion, we may not warn you that you have left Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Properties and Third-Party Promotions are not under the control of Company. Company is not responsible for any Third-Party Properties or Third-Party Promotions, including the accuracy, timeliness or completeness of such content. Company provides these Third-Party Properties and Third-Party Promotions only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or Third-Party Promotions, or any product or service provided in connection therewith. You use all links in Third-Party Properties and Third-Party Promotions at your own risk. When you leave the Company Properties, the Agreement and Company’s policies will not govern your activities on Third-Party Properties. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Properties or providers of any Third-Party Promotions, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.2 Advertising Revenue. Company reserves the right to display Third-Party Promotions before, after, or in conjunction with User Content posted on or in the Company Properties, and you acknowledge and agree that Company has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Company as a result of such advertising).
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
- (a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
- (b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- (c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (Y) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (Z) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 User Content. COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
12.1 Violations. If Company becomes aware of any possible violations by you of the Agreement, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
12.2 Breach. In the event that Company determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:
- (a) Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Agreement;
- (b) Delete any of Your Content provided by you or your agent(s) to Company Properties;
- (c) Discontinue your registration(s) with any of Company Properties;
- (d) Discontinue your subscription to any Services;
- (e) Block your access to the Company Properties and to your Account;
- (f) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- (g) Pursue any other action which Company deems to be appropriate.
13. TERM AND TERMINATION.
13.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Agreement.
13.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Company Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Company Properties, unless earlier terminated in accordance with the Agreement.
13.3 Termination of Services by Company. The Company may terminate this Agreement, including your right to use the Website, Application and Services at any time, with or without notice, including in the event Company determines that you are in breach of this Agreement.
13.4 Termination of Services by You. If you want to terminate one or more of the Services provided by Company, you may do so by (a) notifying Company at any time and (b) discontinuing your use of the Service(s). Your notice should be sent, in writing, to Company’s address set forth below.
13.5 Effect of Termination. Termination of one more of the Services also includes removal of access to the Service(s) and barring of further use of the Service(s). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Virtual Credits and Your Content. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14. INTERNATIONAL USERS.
Company Properties are controlled and offered by Company from its facilities in the United States. Company is headquartered in the United States and we provide the Company Properties for use only by persons located in the United States. In the event that Company Properties can be accessed from outside of the United States and contain references to Services and Content that are not available in your country or jurisdiction, such references do not imply that Company intends to announce such Services or Content in your country or jurisdiction. Company makes no representations that Company Properties are appropriate or available for use in other locations. Those who access or use Company Properties from outside of the United States do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes, claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims or requests for relief under $150,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all disputes, claims or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Nevada. All other disputes, claims or requests for relief shall be arbitrated.
15.6 Severability. Except as provided in subsection 15.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.7 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
16.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes, lock-down or shortages of transportation facilities, fuel, energy, labor or materials.
16.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
16.5 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
16.6 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
16.7 Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: 23 Center Street, Middletown, NY 10940, USA. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
16.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.10 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.