Effective Date: [_________, 2022]
BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY, AND WAIVER OF A RIGHT TO JURY TRIAL.
Any new or additional features, tools, services, or content that are added to the Services will also be subject to these Terms. In some instances, you may be subject to different or additional terms and conditions, policies and guidelines (“Additional Terms”) that are applicable to certain parts of the Services. Those Additional Terms will be posted on the Services in connection with the relevant offering. In the event of a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
The Services are available only to users who can form legally binding contracts under applicable law. By accessing or using the Services, you represent that you are at least eighteen (18) years of age, or over the age of majority in the state or country where you are a resident or citizen. If you are under the age of majority in your state or country, you must not use the Services.
a.) Registering; Account: Access to and use of certain functionalities of the Services may require you to register for a Community membership (“Membership”) and/or account (“Account”) with us. If you register and are approved for an Account you will become a Community member (“Member”). You will, if applicable, create a user ID and password to access your Account. You agree to provide us with accurate, complete and current information about yourself during Account registration and at all other times, and you agree to update all information provided to us or requested by us if, and as soon as, such information changes and before you make any purchase related to the Services. You agree to keep your log-in information confidential and to not authorize any third party to use your Account. We will not be liable for any loss or damage that results from the unauthorized use of your Account, either with or without your knowledge. You are fully responsible for your failure to safeguard information or for permitting any other person to access or use the Services via your Account, and you agree that we may attribute all use of your Account to you. You agree to notify us immediately by using the contact information provided in Section 19 if you suspect any unauthorized use of your Account or any other breach of security. You may not sell or otherwise transfer, share or “loan” your Account. We have the right to cancel or suspend your Membership, including blocking access to or closing your Account, for any reason or for no reason at any time, as determined in our sole discretion.
b.) Membership Fees: The Community may charge a non-refundable subscription fee for all or certain tiers/types of Membership (the “Membership Fee”). Paid Memberships may be offered for different durations, including on a monthly, quarterly or annual term, and with upfront or periodic billing. Member agrees that by selecting a specific Membership term during the registration process and accepting these Terms they have committed to a Membership of the relevant duration (“Membership Term”). The Membership Term and payment cadence or terms may differ (for example, an annual Membership may be offered with monthly billing).
Unless otherwise stated, the Membership Term automatically renews for successive Membership Terms of equal duration unless notice is received from the Member at least thirty (30) days in advance for annual (or longer) Memberships, fifteen (15) days in advance for quarterly Memberships or seven (7) days in advance for monthly Memberships. You may communicate your intention to not renew your Membership by clicking HERE. By registering as a Member of a fee-based Membership, you agree that your subscription will automatically renew each year and you authorize the Community to charge the Membership Fee to the credit/debit card or other payment provider you have indicated in your Account at the time of registration, and again at the beginning of any subsequent Membership Term. For the avoidance of doubt, Membership Fees are non-refundable and cancelled subscriptions will continue until the end of the then-current Membership Term.
The Community also may charge an application fee and/or fees for special events, courses or other a-la-carte offerings from time to time (each such offering, an “Additional Offering,” and each such fee, an “Additional Offering Fee”). We may amend the Membership Fees at any time, such amendment effective at the beginning of the next Membership Term. You will be notiﬁed in advance if there will be any changes to the amount, date or frequency of the payment of Membership Fees and be given the opportunity to end your Membership in advance of any such changes going into effect. We have the sole discretion to waive or amend the Membership Fees. Membership Fees are NOT refundable if you request to cancel or terminate your Membership. Additional Offerings will often be subject to Additional Terms; Additional Offering Fees are typically NOT refundable unless expressly set forth in any applicable Additional Terms. Should a refund be issued by us, all refunds will be credited solely to the payment method used in the original transaction. Some transactions may be subject to taxes in certain countries or states. Depending on your location and the nature of the product or Services you receive from us, this may be a rental tax, sales tax and/or use tax. Tax rates are different from location to location. You are responsible for paying all such taxes.
c.) Fee Processing: You agree to pay all fees or charges for your Membership in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide a valid credit card or PayPal account (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing your payment details you accept and consent to being charged fees in the form we requested and that no additional notice or consent is required.
d.) Failure to Pay Fees: Failure to pay fees within ten (10) days of the payment due date will result in a Member’s Membership and Account being suspended and if not paid within thirty (30) days of the due date the Member’s Membership and Account will be terminated.
e.) Proposing New Members: Members are encouraged to propose new applicants to join the Community, however, all membership decisions are in our sole discretion.
f.) Guests: The Community may provide Members with one or more guest passes to invite a guest to certain qualifying events. We reserve the right, in our sole discretion, to limit guests’ access to the Services. We strive for an inclusive community and except as otherwise noted in these Terms, there are no restrictions to the profile of the guests. Members (or their guests) must not be on Membership pause and are responsible for ensuring their guests comply with these Terms, including following any community guidelines, codes of conduct or other Additional Terms applicable. Failure to do so could result in suspension or termination of Member’s Membership and/or Account.
g.) Member and Guest Release: The Community may also film, record video or photograph certain Member events (excluding those events or event types with a stated policy against recordation) and activities for use in Membership programs, advertising, promotions, public relations, and other commercial and business purposes. By participating in virtual or in-person programming, you and your guests each consent to the use of your name, biographical details, image, actions, voice and likeness, in any materials the Community chooses to publish in any medium in any territory, in perpetuity, without further authorization or compensation, in any media, whether now known or hereafter devised, including, without limitation, broadcast, cable and satellite television, social media and the Internet (e.g., YouTube, other digital video platforms, Twitter, etc.) and mobile platforms (including mobile applications), and for any business purpose (including commercial, merchandising and promotional purposes).
h.) Confidentiality: You may not disclose Confidential Information, as defined below, outside of your use of the Services as part of your Membership. “Confidential Information” means, but is not limited to, information that you receive from the Community or other members through the Services as part of your Membership and pertains to the business, product, technology, idea or customers of any member, and all information that is valuable to the member. Confidential Information also includes the identities of other members and their guests. Confidential Information does not include information that is: (a) public knowledge; (b) in the possession of the recipient before receipt from the disclosing party; (c) is disclosed to the receiving party by a third party without breach of confidentiality obligations; or (d) is independently developed by the receiving party without reference to the Confidential Information. Disclosure of Confidential Information in violation of these Terms will result in termination of Membership. Where Confidential Information is required to be disclosed by law, legal process, government agency or court order, you will notify us at firstname.lastname@example.org of the request or demand for disclosure (as permitted by law) as soon as possible to allow us to obtain a protective order and use diligent efforts to limit disclosure to only what is required by law and seek confidential treatment of the Confidential Information.
i.) Conflicting Interests: Any conflicting interests that may arise between you as a Member with other Members, guests or users through using the Services, such as attending a group, must be disclosed and approved in advance. You have the right to ask to be assigned to a different group. “Conflicting interests” means a situation in a group where: 1) two or more Members are employed by companies, or otherwise associated with entities, and such companies or entities are substantially competitive or have material commercial overlap; 2) two or more Members have a personal or familial conflict; or 3) a Member has outside duties or obligations which would impose restrictions on what information can be shared within the group. If you have a question about whether a situation implicates conflicting interests, please contact Community at email@example.com.
j.) Warranty: You represent and warrant that your Account, Membership, and use of the Services will not violate any contractual restrictions, applicable law, or regulation to which you are subject.
3. OWNERSHIP; INTELLECTUAL PROPERTY; PERMITTED USE
The Services and all information, materials, and other content available through the Services (collectively, the “Content”) are for the personal use and enjoyment of individual users only and may not be used in connection with any commercial endeavor. The Content is the sole and exclusive property of the Community, its licensors and certain other third parties and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. The Community owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services.
All trademarks, service marks, logos, trade names, and any other proprietary designations of the Community used herein are trademarks or registered trademarks of the Community or our suppliers. You may not use any of our trademarks, logos, or trade dress in connection with any product or service that is not owned or provided by us, in manner that is likely to cause confusion among customers or users, or in any manner that disparages us or our partners or suppliers.
Subject to your compliance with these Terms, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services, and to access, use, and view any Content, solely for your personal and internal business purposes. Except for the limited rights set forth in this Section, you may not copy, sell, rent, distribute, modify, publicly perform, publicly display, transfer, create derivative works of, or sublicense the Services or Content. Your right to access and use the Services and the Content shall automatically terminate upon any violations of these Terms.
When using the Services, you must not:
- remove any proprietary notices on the Services or Content, or attempt to disable, bypass, modify, defeat, or otherwise circumvent any digital rights management or security system used as part of the Services or Content;
- upload to the Services the personal information of others that you are not authorized to provide;
- provide, post on or transmit through the Services any content, data or information that contains viruses or malicious code or is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, sexually explicit, profane, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable, including any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, rule or regulation of the laws applicable to you or applicable in the country in which the material is posted;
- use the Services or Content in a way that suggests you are a representative of the Community;
- use the Services or Content to develop applications, services, websites, or any other functionalities that leverage the Services or Content;
- infringe or misappropriate the intellectual property, proprietary or privacy rights of any third party;
- interfere with or disrupt the proper functioning of the Services or Content, Community or any third party systems used to host the Services, or other equipment or networks used to provide the Services or Content;
- make video or audio recordings, still images, live-stream or otherwise copy or transmit the Services or Content, or any part thereof;
- communicate the Content to the public or otherwise grant access to functionalities of the Services only available to Members, or any part thereof;
- make any use of the Services or Content that violates any applicable local, state, national, international or foreign law including United States and foreign export regulations and restrictions;
- allow any individual to use any Account log-in credentials (e.g., user identification(s), code(s), password(s), procedure(s) or user keys) for someone other than the individual identified in the account information; or
- cause damage to the Community’s business, reputation, employees, members, facilities, or to any other person or legal entity.
Any scraping, automated access, or other unauthorized access to, and storage of, Services or Content will result in immediate termination of your access to the Services, Content, and your Membership. Use of the Services or Content for any purpose other than what is described in this Section is prohibited.
4. USER GENERATED CONTENT
You may be able to post, submit, publish, or display content, or transmit content (hereinafter, “post”) on or via the Services (any such posts, collectively, “User Contributions”). You are solely responsible for the User Contributions that you post via the Services, including its legality, reliability, accuracy, and appropriateness. The Community is not responsible or liable for the content or accuracy of any User Contributions posted by you or any other Member or user of the Services. Except to the extent of the rights and license you grant in these Terms, and subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Contributions.
By posting User Contributions to any public area of the Services, you automatically grant, and you represent and warrant that you have the right to grant to the Community an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, publicly display, publicly perform, and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.
The Community is not obligated to review, monitor, delete, or edit postings. However, we reserve the right to do so at any time in our sole discretion, for any reason or no reason, and to delete or edit any posting that is objectionable, offensive, illegal, or in violation of these Terms or any community guidelines, codes of conduct or other applicable Additional Terms with or without notice. You agree that you have no recourse against us if we refuse to post, or if we delete or refuse to delete, any post by you or other users of the Services. The number of posts by any Member or Services user is subject to reasonable limits at the discretion of the Community.
The content standards set out below apply to any and all User Contributions. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, you agree that you will not:
- Post or deliver any unsolicited advertisement, promotional materials, junk e-mail, bulk e-mail (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes, without our express prior written consent;
- Use the Services for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and buying or selling products or services) (a) without the Community’s prior written consent, or (b) unless (i) such use is relevant to and consistent with the purpose of the channel in which the communication occurs; (ii) you clearly disclose your association with any product that you promote; and (iii) such use is consistent with any other applicable community guidelines or other Additional Terms.
- Post or deliver, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, tortuous, harassing, hateful or otherwise objectionable;
- Post or deliver, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of medical condition, religion, race, ethnicity, sexual orientation, gender, age, or disability;
- Post or deliver, or provide links to, any postings containing defamatory, false or libelous material.
- Post or deliver information that you know is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- Post or deliver any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or right of publicity, and including by way of meta-tags or any other “hidden text”;
- Post or deliver any posting that you do not have a right to make available under law or contractual or fiduciary relationships;
- Post or deliver information that violates any of our community guidelines, codes of conduct or other applicable Additional Terms.;
- Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another;
- Manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you deliver;
- Use the Services in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of the Services or other users’ computer equipment, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment;
- Attempt to gain unauthorized access to the Services, any related website, other accounts, computer system, or networks connected to the Services, through hacking, password mining, or any other means; or
- Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services, including harvesting or otherwise collecting information about others such as e-mail addresses or other personally identifiable information.
We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Services, terminating the Account of such violators, or taking further legal action.
5. USER FEEDBACK
By submitting any ideas, feedback, or suggestions (“Feedback”) to us through the Services or other means, you acknowledge and agree that: (i) your Feedback does not contain confidential or proprietary information of you or any third party; (ii) we are not under any obligations of confidentiality with respect to the Feedback; (iii) we may freely use, reproduce, distribute, and otherwise exploit the Feedback for any purpose; and (iv) you are not entitled to any compensation of any kind from us.
6. WIRELESS FEATURES; MESSAGES; LOCATION-BASED FEATURES
a.) Wireless Features: The Services may offer certain features and services via your wireless device. Features and services may include the ability to access the Services’ features, upload content to the Services, receive messages from the Services, and download applications to your wireless device (collectively, “Wireless Features”). You agree to receive communications we may send through Wireless Features for which you are registered. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Services for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Services to reflect the changes. If the Services includes push notifications or other mobile communication capability, you hereby approve of our delivery of electronic communications directly to your mobile device. These notifications, including badge, alert or pop-up messages, may be delivered to your device even when the Services is running in the background. You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your device through your device and/or app settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. Contact your carrier with questions regarding these issues.
b.) Email Messages: You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions, and if your opt-out is limited to certain types of emails, the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Services, such as administrative and service announcements, and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
7. COPYRIGHT INFRINGEMENT
a.) Digital Millennium Copyright Act: We are committed to complying with U.S. copyright and related Intellectual Property laws. If you are a copyright owner who would like to send us a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to identify content or material posted on the Services that is infringing and that you would like removed from our Services, or if you are a user whose work has been removed in response to such a notice of infringement and would like to file a DMCA counter-notice, you may submit such notice to us by following the instructions in this Section 7.
b.) DMCA Infringement Notification: If you believe your copyrighted work has been copied and is accessible on the Services in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in accordance with the requirements of the DMCA:
i. The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
ii. A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
iii. Identification of the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the website where it is posted or the name of the book in which it has been published).
iv. Identification of the URL or other specific location on the Services where the material you claim is infringing is located, providing enough information to allow us to locate the material.
v. Your name, address, telephone number, and email address so that we may contact you.
vi. 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.
vii. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on the Services can be reached as follows:
By mail: [Insert Physical Address of Agent]
By email: [Insert Email Address of Agent]
The email address above is only for reporting copyright infringement and may not be used for any other purpose.
If you believe an individual is a repeat infringer, please follow the instructions above to contact our DMCA agent and provide information sufficient for us to verify the individual is a repeat infringer. It is our policy to remove and discontinue service to repeat offenders.
It is often difficult to determine if your copyright has been infringed. We may elect to not respond to DMCA notices that do not substantially comply with all of the foregoing requirements, and we may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
c.) DMCA Counter-Notification: If access on the Services to a work that you submitted to the Community is disabled or the work is removed as a result of a DMCA copyright infringement notice, and you believe in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then you may send a “Counter-Notification” to the email address listed above. Your DMCA Counter-Notification should contain the following information:
i. A legend or subject line that says: “DMCA Counter-Notification”;
ii. A description 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 (please include the full URL of the page(s) on the Services from which the material was removed or access to it disabled);
iii. A statement 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;
iv. Your full name, address, telephone number, email address, and the username of your account with us (if any);
v. 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 the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
vi. Your electronic or physical signature.
d.) Receipt of DMCA Counter-Notification: If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA copyright infringement notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services. Upon our receipt of a Counter-Notification that satisfies the requirements of DMCA, we will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA's procedures regarding counter notification. All Counter-Notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act. In all events, you expressly agree that neither the Community nor any of its affiliates or their employees, officers, directors, or agents will be a party to any disputes or lawsuits regarding alleged copyright infringement. Please note you may be held liable for money damages if you materially misrepresent an activity is infringing your copyrights.
8. PAYMENT PROCESSOR
9. OTHER WEBSITES AND SERVICES
The Services may also link or otherwise refer to third-party websites and services, including independent professional facilitators and experts (“Third-Party Services”). Third-Party Services are not under the control of the Community and we are not responsible for Third-Party Services, or for any information or materials on, or any form of transmission received from, any Third-Party Service. The inclusion of a link or reference to a Third-Party Service does not imply endorsement by the Community of the Third-Party Services. We do not investigate, verify or monitor the Third-Party Services. We provides links to Third-Party Services for your convenience only. YOU ACCESS THIRD-PARTY SERVICES AT YOUR OWN RISK. THIRD-PARTY SERVICES ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS OR JOINT VENTURERS OF THE COMMUNITY. THE COMMUNITY DOES NOT PERFORM THE THIRD-PARTY SERVICES AND MEMBERS HEREBY ACKNOWLEDGE THAT THE COMMUNITY DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR THIRD-PARTY SERVICES BUT MAY MONITOR AND SUPPORT THIRD-PARTY SERVICES THROUGH THE SERVICES.
In particular, some activities relating to the Services may be carried out using the third party platform Slack, hosted by Slack Technologies, Inc. and its affiliates (“Slack”). Your use of Slack is subject to Slack’s User Terms of Service, located at: https://slack.com/terms-of-service/user. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SLACK’S PRIVACY OR SECURITY PRACTICES, AND YOUR USE OF SLACK IS AT YOUR OWN RISK.
10. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
We strive to accurately describe our products or services offered on the Services; however, we do not warrant that such specifications, pricing, or other content on the Services is complete, accurate, reliable, current, or error-free. As permitted by applicable law, we shall have the right to refuse or cancel any orders in our sole discretion. Your orders are offers to purchase subject to our acceptance, which we may reject or cancel subject to refund. If we charged your credit or other account prior to rejection or cancellation, we will reissue credit to your account. Additional Terms may apply. If a product you purchased or accepted from the Community is not as described, as permitted by applicable law, your sole remedy is to return it, to cancel the purchase and receive a credit for the purchase price.
11. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS” “WHERE IS” AND “AS AVAILABLE” WITHOUT WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMMUNITY MAKES NO REPRESENTATIONS, WARRANTY OR GUARANTEE OF THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR CONTENT. THE SERVICES AND CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT OR ANY OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES DOES NOT CONSTITUTE ADVICE OF ANY KIND AND SHOULD NOT BE RELIED UPON IN ANY WAY. THE COMMUNITY IS NOT LIABLE FOR ANY OMISSIONS OR ERRORS OF THE SERVICES OR CONTENT. UNDER NO CIRCUMSTANCES WILL THE COMMUNITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU OR A THIRD PARTY.
12. LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE COMMUNITY AND ITS, SUBSIDIARIES, AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “COMMUNITY PARTIES”) BE LIABLE UNDER, OR IN CONNECTION WITH, THESE TERMS OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR LOSS OF DATA; OR (II) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
IN NO EVENT WILL COMMUNITY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED AN AMOUNT EQUAL TO THE GREATER OF (A) THE AMOUNT YOU HAVE PAID COMMUNITY IN CONNECTION WITH THE TRANSACTION(S) OR CIRCUMSTANCES THAT UNDERLIE THE CLAIM(S); OR (B) FIVE U.S. DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
14. GOVERNING LAW; DISPUTE RESOLUTION
a.) Forum Selection/Jurisdiction: Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Services, the Content, your User Contributions, these Terms, or any applicable Additional Terms (collectively, “Dispute”) shall be in New York, New York. Each party submits to personal jurisdiction and venue in New York, New York for any and all purposes.
b.) Pre-Arbitration Notification: The Community and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that the Community need not do so in circumstances where its claims of intellectual property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or the Community– shall send a letter to the other side briefly summarizing the claim and the request for relief. If the Community is making a claim, the letter shall be sent, via email, to the email address listed in your Account, as applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 14(b). If you are making a claim, the letter shall be sent to: [insert physical address here]. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 14. Either you or the Community, however, may seek provisional remedies (such as preliminary injunctive relief) subject to Section 14(d) before the expiration of this sixty (60)-day period.
c.) Arbitration of Claims: Unless you give us notice of opt-out within five (5) business days of your first use of the Services, addressed to: [insert physical address here], all actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section 14, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in New York, New York, before a single arbitrator. If the matter in dispute is between Community and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in New York, New York or, if sought by Community, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section 14; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the Supreme Court, Civil Branch, New York County or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award. To the extent there are any challenges to the arbitrability of a claim, the arbitrator shall determine any and all such challenges.
d.) Limitation on Injunctive Relief: AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE SERVICES, CONTENT, USER CONTRIBUTIONS, PRODUCT, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY COMMUNITY PARTY (INCLUDING YOUR LICENSED USER CONTRIBUTIONS) OR A LICENSOR OF ANY COMMUNITY PARTY.
e.) Governing Law: These Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against the Community Parties or by Community against you pursuant to this Section 14, or otherwise related to the Services, Content, User Contributions, products, or Community intellectual property, will be governed by, and construed and resolved in accordance with, the laws of the State of New York and the United States of America (with respect to matters subject to federal jurisdiction such as copyright) without regard to principles of conflicts of law. This Section 14 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and Community agree that we intend that this Section 14 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 14 can only be amended by mutual agreement. Either party may seek enforcement of this Section 14 in any court of competent jurisdiction.
f.) Class Action Waiver: As permitted by applicable law, both you and Community waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 14 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
g.) Jury Waiver: AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
h.) Small Claims Matters: Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 14(f).
i.) Survival: The provisions of this Section 14 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 14 shall remain in full force and effect notwithstanding any termination of your use of the Services or these Terms.
15. CHANGES TO SERVICES AND/OR TERMS
To the maximum extent permitted by applicable law, we may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Services, temporarily or permanently, in whole or in part, at any time with or without notice to you, and we will not be liable for doing so. We reserve the right from time to time to modify these Terms in our sole discretion and will notify you of material modifications, such as by posting updated Terms on the Services, sending you an email to your account email, or by other reasonable means. Your use of the Services after any modification we make constitutes your acceptance of the most recent version of these Terms as modified. You may be required to accept modified Terms to continue use of the Services.
Following termination (by us or by you) or suspension, you will not be permitted to use the Services. Any suspension or termination will not affect your obligations to the Community under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Services, or upon notice from us, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that discontinue use of the Services. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including terms pertaining to ownership and intellectual property, the rights and licenses you grant to the Community in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, mandatory arbitration and certain general terms.
17. INTERNATIONAL USE
Please be aware that we are headquartered in the United States and that the Services and Content are governed by United States law. If you are using the Services or accessing the Content from outside of the United States, your information may be transferred to, stored, and processed in the United States where our servers may be located.
We make no representation that the Services or Content are appropriate or available for use in locations outside of the United States, and access to the Services or Content from territories where such Services or Content is illegal is prohibited. Those who choose to access the Services and Content from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Services or Content in violation of United States export laws and regulations.
If you use the Services or access the Content outside of the United States you: (i) consent to the transfer, storage, and processing of your information to and in the United States; (ii) will not access or use the Services or Content if you are on the United States Treasury Department’s “Specially Designated Nationals and Blocked Persons List,” or are located in a country embargoed by the United States; and (iii) agree to comply with all local laws, rules, and regulations including all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject Community to any registration requirement within such jurisdiction or country.
18. FORCE MAJEURE
We will not be liable to you for failing to perform our obligations under or arising out of these Terms, or the applicable Additional Terms, or any applicable laws or regulations because of any event beyond our reasonable control, including a labor disturbance, an internet outage or interruption of service, a communications outage, failure by a service provider or any other third party to perform, acts of war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, fire, flood, acts of god, pandemics, strike, lock-out or other industrial disputes (whether or not involving our employees or those of our affiliates, suppliers or licensors) or legislative or administrative interference (including those giving rise to currency changes).
19. GENERAL TERMS
20. CONTACT INFORMATION