Last updated May 19, 2023
- The website(s) and mobile applications published by Us that display(s) or provide(s) an authorized link to this Agreement (each, with its respective pages, features and functionalities, a “Digital Platform”); and
- The content and services offered, published, distributed or transmitted by Us on or through each Digital Platform (collectively, the “Service(s)”).
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING ANY DIGITAL PLATFORM OR SERVICE BECAUSE IT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND US THAT APPLIES TO EACH AND EVERY DIGITAL PLATFORM AND SERVICE, EVEN IF YOU ONLY VISIT, ACCESS, REGISTER WITH OR USE ONLY ONE DIGITAL PLATFORM OR SERVICE.
WE MAY TERMINATE, SUPPLEMENT, AMEND OR OTHERWISE MODIFY THESE TERMS, OR IMPOSE NEW CONDITIONS OF USE, AT ANY TIME AND IT IS YOUR RESPONSIBILITY TO CHECK THESE TERMS PERIODICALLY FOR CHANGES. WE WILL ENDEAVOR TO PROVIDE NOTICE TO YOU OF SUCH MODIFICATIONS, TO BE COMMUNICATED TO YOU THROUGH ONE OR SEVERAL METHODS AS DETERMINED AND SELECTED SOLELY BY US. METHODS WE COMMONLY EMPLOY ARE (I) POSTING ON THIS OR ANOTHER PAGE OF THE APPLICABLE DIGITAL PLATFORM AND/OR (II) EMAILING TO ANY EMAIL ADDRESS THAT YOU PROVIDE TO US. CHANGES TO THE TERMS SHALL BE DEEMED EFFECTIVE AS OF THEIR STATED EFFECTIVE OR MODIFICATION DATE.
YOU ARE AUTOMATICALLY ACCEPTING AND AGREEING TO THE MOST-RECENT VERSION OF THESE TERMS WHENEVER YOU USE, CREATE, REGISTER WITH OR LOG INTO AN ACCOUNT ON OR THROUGH A DIGITAL PLATFORM. SIMILARLY, YOU ARE AUTOMATICALLY ACCEPTING AND AGREEING TO THE MOST-RECENT VERSION OF THESE TERMS WHENEVER YOU VISIT, ACCESS, REGISTER WITH, SUBSCRIBE TO OR USE A DIGITAL PLATFORM OR SERVICE; AND YOUR CONTINUING VISIT, ACCESS, REGISTRATION WITH, SUBSCRIPTION TO OR USE OF ANY OF THE FORGOING REAFFIRMS YOUR ACCEPTANCE AND AGREEMENT IN EACH INSTANCE.
IF YOUR ACCEPTANCE OF THESE TERMS IS FURTHER EVIDENCED BY YOUR AFFIRMATIVE ASSENT TO THE SAME (E.G., BY A “CHECK THE BOX” ACKNOWLEDGMENT PROCEDURE), THAT AFFIRMATIVE ASSENT IS THE EQUIVALENT OF YOUR ELECTRONIC SIGNATURE TO THESE TERMS.
IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS IN ITS ENTIRETY, THEN YOU SHOULD NOT VISIT, ACCESS, REGISTER WITH, SUBSCRIBE TO OR USE ANY DIGITIAL PLATFORM OR SERVICE.
The Digital Platforms and Services are not intended for use by any individual under the age of 13.
You may be required to register for certain activities, or access registration-only areas of a Digital Platform, or to enroll or receive certain Services. If and when you register, you will be asked to provide certain information about yourself. You agree that all information you provide in order to register is accurate, current and complete, and will promptly update any information as necessary to maintain its accuracy.
If you are under the age of majority in your jurisdiction of residence (generally 18 years of age) but at least 13 years of age (subject to any applicable supplemental terms), you may use the Digital Platforms and certain Services but only with the permission of, and under the supervision of, a parent or legal guardian. If you are a parent or legal guardian agreeing to these Terms for the benefit of an individual between the ages of 13 and the age of majority in your jurisdiction of residence, please be advised that you are fully responsible for his/her/their User Content and any legal liability that he/she/they may incur.
During any applicable registration process, you may be asked to select a username and password. It is your responsibility to ensure that your password remains confidential. By registering, you agree that you will not allow others to use your account and that you are fully responsible for all activities that occur under your username. You agree to notify Us immediately in the event of unauthorized use of your password or account, or of any other breach of security relating to your account. We are not liable for any loss or damage resulting from your failure to maintain the confidentiality of your account as provided herein. We may assume that any communications We receive under your password have been made by you.
3. Prohibited Content and Activities.
You may not access or use, or attempt to access or use, a Digital Platform or Service to take any action that could harm Us or any other person or entity, interfere with the operation of a Digital Platform or Service, or use a Digital Platform or Service in a manner that violates any law. For example, you may not engage in any of the following activities at any time with respect to a Digital Platform or Service:
- the impersonation of any person or entity or misrepresentation of yourself in any way (including the use of another person’s information, account or password);
- any act that infringes or otherwise violates the intellectual property, privacy or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Us or Our licensors with respect to a Digital Platform or Service);
- reproduce all or a portion of a Digital Platform or Service or any communications, information or content found thereon or therein, or create any derivatives works of the foregoing (unless expressly authorized by these Terms);
- publish any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening or abusive or degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, orientation or identity, disability or other classification);
- solicit, collect, transmit, store, publish or otherwise make available a person’s or entity’s personal, confidential, proprietary information or private facts without his/her/their/its prior written consent;
- publish any machine, computer or randomly generated content;
- supply or publish any information or statement on, through or in relation to a Digital Platform that is false, misleading, deceptive or incorrect;
- take any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers or applications;
- engage in unauthorized spidering, scraping or harvesting of content or information, or otherwise engage in the systematic retrieval or copying of any information or content found on, through or in relation to the Digital Platforms or Services or its server(s), to directly or indirectly create or compile a collection, compilation, database or directory of information;
- use any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with, test the vulnerability of, or impermissibly access, in whole or in part, a Digital Platform or Service or its server(s);
- engage or in or support any act that involves or concerns decrypting, bypassing or circumventing security, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through or in relation to a Digital Platform or Service or its server(s);
- engage in any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure or operation of a Digital Platform or Service or its server(s);
- engage in any act that gains or attempt to gain unauthorized access to computer systems, networks, information or materials on, through or in relation to a Digital Platform or Service or its server(s) (the use or distribution of tools designed for compromising security is strictly prohibited); or
- engage in any other act that is or becomes or that We believe is improper, illegal or harmful to a Digital Platform or Service or its server(s) or any person, entity or property.
Violations of system or network security and certain other conduct may result in civil or criminal liability, or both. We may report, investigate and work with law enforcement authorities to prosecute users who violate these Terms. If you commit, cause or aid such violations, We may suspend or terminate your access to the Digital Platforms and Services (as well as any other property We own or control) for any or no reason at any time without notice.
In addition, to the maximum extent permitted by law, We also reserve the right to disclose your identity to any third-party who is claiming that any User Content you provide violates the rights (intellectual property or otherwise) of a third-party.
4. User Content and Submissions.
- General. From time to time a Digital Platform or Service may provide you with an opportunity to submit or post comments, send emails, message or other communications to other users or Our staff, or otherwise post, publish, submit, transmit, upload, send or otherwise provide information to Us. You are fully responsible for the content, data and other materials you provide to Us by, through or in connection with a Digital Platform or Service. Such content, data and other materials include without limitation photographs, data, images, video and audio clips, feedback, messages, ideas, reviews, comments, information, communications and any other content that you submit to or publish on, through or in relation to a Digital Platform or Service, including those which you submit to or publish on any online social media account (e.g., Facebook, Twitter, Instagram) that you own and link or otherwise associate with a Digital Platform, if any and as applicable. All such materials are referred to as “User Content.”
You represent, promise and warrant that all User Content is wholly original to you and you are the exclusive owner of all rights, titles and interests in and to the User Content (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted or displayed in, and all persons and entities who authored, own or contributed to, the User Content to allow for your performance and grant of rights hereunder (including specifically from all parents or legal guardians of any minors appearing in or contributing to the User Content).
- Prohibited User Content. You agree, promise and covenant not to provide User Content that:
- infringes upon, misappropriates or otherwise violates the proprietary, publicity or privacy rights of any person or entity;
- plagiarizes the work of others;
- transmits, stores, or otherwise makes available material which contains any material of a commercial nature, including but not limited to advertising, promotions, "junk mail," "spam," "pyramid schemes," "chain letters," or solicitations of any kind;
- defames, disparages, embarrasses or discloses confidential, private or personal information about or belonging to any person or entity
- exploits, harms, personally attacks or impersonates any person or entity, or falsely states or otherwise misrepresents an affiliate with a person or entity;
- incites violence or is profane, indecent, obscene, racist, sexist, sexually explicit, libelous, slanderous, hateful, threatening, abusive, deceptive, illegal, false, misleading, hate speech and/or attack on a group or individual;
- contains any form of spam, malware, virus, bug, bot, spyware or other malicious or tracking technology, or contain links to materials that is otherwise prohibited by these Terms
- is insulting or otherwise derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or other mutable or immutable characteristic; or
- otherwise violates these Terms.
- License to Use User Content. You hereby grant Us an irrevocable, non-exclusive, royalty-free, fully-paid up, transferable, sub-licensable, perpetual and universe-wide license for Us to host, store, reproduce, transmit, distribute, license, sublicense, market, modify, adapt, edit, create derivative works, communicate, translate, publish, syndicate, publicly perform, publicly display, archive, commoditize, offer for sale, export and otherwise use and exploit all or any part of the User Content and any elements and derivatives thereof in any manner, medium or form, whether now known or hereinafter devised, as We see fit in Our sole discretion. You permanently and irrevocably waive any and all moral rights you may have in the User Content to the fullest extent permitted by applicable law, and all rights to review or approve any use of User Content by Us or Our designee(s). Notwithstanding the license provided above, We are under no obligation to use any User Content. All User Content, whether solicited or unsolicited, shall be licensed to Us as described above. Finally, We reserve the right, but not the obligation, to use your name in connection with the broadcast, print, online, or other use or publication of your User Content.
- PLEASE NOTE THAT USER CONTENT MIGHT BECOME THE SUBJECT OF PUBLIC DISCLOSURE. WE ARE NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM OR IN CONNECTION WITH, THE PUBLICATION OF ANY USER CONTENT.
- If you do not want to grant Us permission to use User Content as provided for in these Terms, do not provide it to Us through the Digital Platforms or your use of the Services.
- You acknowledge and agree that We and Our designee(s) may or may not, at our discretion, pre-screen User Content before it appears on a Digital Platform or through a Service, and that We and Our designee(s) have no obligation to do so. You further acknowledge and agree that We and Our designee(s) reserve the right in each of our sole discretion to monitor, review, edit, remove, delete, disable, refuse, restrict, or terminate access to any User Content (but have no obligation to do so). Without limiting the foregoing, We and Our designee(s) have an unqualified right to remove any User Content that violates these Terms or is otherwise objectionable in Our sole discretion, and you agree not re-post, re-publish or re-submit any User Content that We have advised you not to post, publish or submit.
- You acknowledge and agree that We do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using a Digital Platform or Service, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that We are a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. §230. We expressly reserve our rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Digital Platforms or Services.
5. Your Device(s).
Certain portions of the Digital Platforms or certain Services may be configured for, and We may offer the applicable Digital Platform or Service through, certain computers, tablets, smart phones or other electronic devices (“Device(s)”); and these Terms shall apply with equal force and measure to your visit, access, registration with, subscription to and use of any Digital Platform or Service through such Device(s).
You are responsible for obtaining and updating your Device(s), software, operating system, carrier and network access as necessary to properly visit, access, register with and use the Digital Platforms or Services. A Digital Platform or Service, or both, may only be accessible using Devices with certain minimum system requirements. In all cases your failure to obtain, secure or maintain a Device and any corresponding minimum system requirements may impact your ability to use all or some of the Digital Platforms or Services, or both. We do not guarantee that any Digital Platform or Service, or any portions thereof, will function on or in connection with any particular Device, software, operating system, carrier or network.
If you visit, access, register with, subscribe to or use a Digital Platform or Service through a particular Device, then you hereby acknowledge and agree that information about your use of such Digital Platform or Service through that Device or its carrier or network (such as, by way of example only, the identity of your Device, or your Device’s carrier or network) may be communicated to Us and/or certain third-parties (such as, by way of example only, your Device’s carrier or network). All or any part of the voice, message and data fees, rates, charges and taxes of your device’s carrier or network, or another third-party, may apply to your visit, access, registration with, subscription to and/or use of a Digital Platform or Service. We are not responsible for, and you further accept full responsibility for, all device carrier and network fees, rates, charges and taxes which may apply, if any.
6. Intellectual Property.
- General. The Digital Platforms and Services and all elements and derivatives of the foregoing (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation and expressions), as well as all copyrights, trademarks, trade secrets and other intellectual properties of the foregoing, are owned, licensed or permissibly used by Us. All such materials are made available by Us for your personal entertainment, information, education and communication only. In no event shall you have or retain any rights, titles or interests in or to the foregoing other than those limited rights expressly granted to you under these Terms. No rights or permissions granted to you under these Terms are coupled with an interest. Nothing contained in these Terms shall be construed as a waiver or limitation of Our or Our licensors’ respective rights and remedies under applicable law. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to a Digital Platform or a Service shall, as between you and Us, at all times be and remain our sole and exclusive property.
- Copyright and Other Intellectual Property. Each Digital Platform and Service contains material which is derived, in whole or in part, from material supplied by Us or Our licensors, as well as other sources, and such material is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual laws. Each Digital Platform is also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on a Digital Platform and in a Service. You acknowledge that each Digital Platform and Service has been developed, compiled, prepared, revised, selected, and arranged by or at the direction of Us through the application of methods and standards of judgment developed, and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property. You agree to not violate any such proprietary rights of Ours (and all others having any such rights) during and after the term of these Terms, and to comply with all reasonable written requests made by Us or Our content suppliers and licensors (“Suppliers”), to protect Our, their and others’ contractual, statutory, and common law rights in the materials appearing on a Digital Platform and available through a Service.
- Trademarks and Service Marks. You may not use any of Our trademarks, trade names, service marks, logos or other identifying indicia in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used without Our consent and you acknowledge that you have no ownership rights in or to any such items.
- Digital Platform Materials. You may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any material from a Digital Platform or accessible through a Service, including content, code and software (collectively, “Platform Material”) unless specifically granted written permission to do so by Us (including any permission included in these Terms). Platform Material may include inaccuracies or typographical errors. We have the right but not the obligation to make changes and updates to any Platform Material at any time and without prior notice.
- Permitted Downloads and Proprietary Notices. Where the function is available, you may download material displayed on a Digital Platform or through a Service to any single Device only for your personal, noncommercial use, provided you also maintain all intellectual property, including copyright and other proprietary notices contained on or associated with the materials.
- Infringement. If you believe in good faith that your work is available on a Digital Platform or through a Service in a way that constitutes copyright infringement, please provide Our designated DMCA agent with the following information in writing:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- Identification of the copyrighted work or a representative list of the works claimed to have been infringed;
- identification of the allegedly infringing material and information reasonably sufficient to permit us to locate the material;
- Your name, address, telephone number, and email address, so that we may contact you if necessary;
- A statement that you have a good faith belief that the disputed use is not authorizes by the copyright owner, its agent, or the law; and
- 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 authorized to act on the copyright owner's behalf.
Please send any notice of claims of copyright to:
1000 Chopper Circle
Denver, Colorado 80204
7. Rights, Permissions, and Consents.
- License of the Digital Platform. Subject to these Terms, We grant you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and view the various publicly displayed pages and tabs of the Digital Platforms, and to view the information and content found thereon, in each instance for your personal, non-commercial use only. Your unauthorized use of a Digital Platform or Service, or any breach by you of these Terms, automatically terminates all licenses granted to you in these Terms.
- License of the Services. Subject to compliance with these Terms, We grant you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and use the Services for your personal, non-commercial use only. For the avoidance of doubt, the foregoing license does not grant you any right to reproduce (other than downloads We expressly permit, if any), publicly perform, publicly display, publish, distribute, transmit or create derivatives of any Service or any element or derivative thereof (including, without limitation, any content, information, source codes, object codes, data or documentation found thereon or therein, in whole or in part), and you are prohibited from engaging in any such activities.
- Activities. We may, from time-to-time, conduct certain audit, repair, modification or testing activities in relation to a Digital Platform or Service, or both, for purposes of developing, operating, improving, researching, troubleshooting, repairing, updating or modifying the same. We reserve the right, but not the obligation, to perform such activities without notice to you, and to exclude you from those activities without notice to you.
- Permission to Link to Digital Platforms. You are permitted to link to a Digital Platform subject to strict compliance with the following terms:
- No link to any Digital Platform my be "framed" if the "frame" contains any advertising or other commercial text or graphics.
- Any online cable, wireless, or other Internet website, service or browser (other than as described in the next bullet point below) that promotes any product (e.g., automobile or soft drink) or brand (e.g., Toyota or Pepsi), or service ( e.g., money transfer services), or public or nonprofit institution (e.g., State of Colorado or Special olympics) may not link to a Digital Platform without Our prior written permission, even though the page/area where the link originates does not promote a product, brand, service or institution.
- Except as prohibited above, any online cable, wireless, or other Internet website, service, or browser (such as fan websites, search engines and directory websites), may link to a Digital Platform without additional information from Us if: (i) it is an online cable, wireless or other Internet website, service, or browser that does not contain any content or service (or link to any online cable, wireless or other Internet website, service, or browser that does not contain any content or service) that in our sole determination, is distasteful, offensive or may reflect adversely upon Our reputation and goodwill; (ii) the link is a plain text link and does not include any mark or logo directly associated with Us; and (iii) the link is spatially separated from and not otherwise associated with any sponsorship advertising or other commercial text or graphics that may be on the page/area containing such plain text.
- LINKS TO A DIGITAL PLATFORM, AND THE EXISTENCE OF SUCH LINKS, DO NOT CONSTITUTE AN ENDORSEMENT BY US OF THE LINKED SERVICES OR THE CONTENT THEREOF.
- Reservation of Rights. Nothing in these Terms shall restrict or limit Our rights, title or interest in or to any of the Digital Platforms, the Services, the User Content or any elements or derivatives of the foregoing.
8. Suspension or Termination of a Digital Platform or Service.
We have the right, but not the obligation, to temporarily or permanently suspend or terminate the function or existence of all or any part of a Digital Platform or the Services at any time, and without notice or recourse, in Our sole discretion.
9. Consent to Receive Electronic Communications; Opt-Out.
- Express Consent. YOU HEREBY EXPRESSLY CONSENT TO US SENDING YOU ANY TYPE OF ELECTRONIC MESSAGE (INCLUDING, WITHOUT LIMITATION, ADVERTISING, TELEMARKETING, OR OTHER COMMERCIAL E-MAILS AND TEXT MESSAGES, INFORMATIONAL E-MAILS OR TEXT MESSAGES, PUSH NOTIFICATIONS AND ELECTRONIC NOTICES, UPDATES, AND NEWSLETTERS), WHETHER THROUGH A DIGITAL PLATFORM, A SERVICE, OR BY PERSONAL COMMUNICATION, E-MAIL, TEXT MESSAGE, AUTOMATIC TELEPHONE DIALING SYSTEM, OR ARTIFICIAL OR PRERECORDED VOICE, ONLINE SOCIAL MEDIA OR ANY OTHER ELECTRONIC MEDIA MEANS OR FORMS. BY GIVING SUCH CONSENT, YOU AGREE THAT NO SUCH COMMUNICATION SHALL VIOLATE THE TELEPHONE CONSUMER PROTECTION ACT, THE CAN-SPAM ACT, OR ANY OTHER APPLICABLE LAWS, RULES OR REGULATIONS. VOICE, MESSAGE, AND DATA FEES, RATES, CHARGES AND/OR TAXES MAY APPLY TO YOU, AND YOU ARE RESPONSIBLE FOR PAYMENT OF THE SAME. YOU ARE NOT REQUIRED TO GRANT THE FOREGOING CONSENT AS A CONDITION OF PURCHASE OR LICENSE OF ANY OTHER PRODUCTS OR SERVICES WE OFFER.
- Opt-Out. You may opt-out of receiving any electronic messages from Us any time by any reasonable means provided by Us, such as by way of example, by clicking the “opt-out” link that appears at the bottom of, or otherwise within, an electronic communication or text message sent by Us, or by sending an e-mail to email@example.com, with a subject line of “Opt-Out of Electronic Communications.” You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of a Digital Platform or Service, or both and/or your ability to receive certain messages and/or notifications from Us.
10. Links to Other Sites, Apps, Networks, Platforms and Servers; Third-Party Services.
11. User Representations, Warranties, and Covenants. In addition to any other representation, warranty, promise, agreement or covenant you make to Us elsewhere in these Terms, you further represent, warrant, promise, agree and covenant to Us that:
- you are a natural person and the age of majority in your jurisdiction (or under the age of majority but over the age of 13 and using the Digital Platforms and Services with the consent and under the supervision of your parent or legal guardian);
- you have read and understand these Terms in its entirety;
- you have the full right, authority and capacity to enter into and abide by the terms and conditions of these Terms;
- you understand and acknowledge that by accepting these Terms you are giving up certain legal rights and remedies;
- you voluntarily accept and agree to, and will fully comply with, the terms and conditions of these Terms;
- you will not violate any applicable international, federal, state or local laws which may concern the Digital Platforms, their servers, the Services or any information, communications or content found on or through them;
- We are not required to seek the permission of or compensate any third-party(s) to exercise any of the rights granted by you under these Terms;
- no obligation, disability, agreement or adverse claim exists that may restrict your performance or grant of rights hereunder; and
- all information you provide to Us in connection with your access or use of the Digital Platforms and/or Services is truthful and accurate.
12. Disclaimers. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION 12 ARE NOT INTENDED TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE LIMITED OR ALTERED UNDER APPLICABLE LAW.
- General Disclaimer. YOUR VISIT, ACCESS, REGISTRATION WITH, SUBSCRIPTION TO OR USE OF A DIGITAL PLATFORM AND ANY PRODUCT OR SERVICE MADE AVAILABLE TO YOU ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES) IN ANY WAY IS DONE AT YOUR OWN RISK. THE DIGITAL PLATFORMS, PRODUCTS AND SERVICES WE OFFER, THE SUCCESS OR PERFORMANCE OF A DIGITAL PLATFORM OR SERVICE, OR BOTH, AND ALL INFORMATION, COMMUNICATIONS, CONTENT AND FEATURES OFFERED, MARKETED, SOLD, PROVIDED, LICENSED OR MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE DIGITAL PLATFORM OR SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
WE DO NOT MAKE, NOR HAVE WE MADE, ANY REPRESENTATIONS, PROMISES OR WARRANTIES OF ANY KIND OR NATURE (WHETHER DIRECT OR INDIRECT, ORAL OR WRITTEN, OR EXPRESS OR IMPLIED) TO YOU WITH RESPECT TO ANY DIGITAL PLATFORM OR SERVICE, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT AND FEATURES OR THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, AVAILABILITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY.
WE EXPRESSLY DISCLAIM ANY AND ALL EXPRESS WARRANTIES, IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD FAITH AND FAIR DEALING, TITLE, NON-INFRINGEMENT, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY AND SAFETY) AND WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM AND USAGE IN TRADE WITH RESPECT TO EACH DIGITAL PLATFORM AND SERVICE, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT OR FEATURES AND THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, AVAILABILITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY AND SAFETY.
WE DO NOT MAKE, NOR HAVE WE MADE, ANY AFFIRMATION OF FACT, PROMISE OR WARRANTY (EXPRESS, IMPLIED OR OTHERWISE) RELATING TO ANY DIGITIAL PLATFORM OR SERVICE, ANY SUCH INFORMATION, COMMUNICATION, CONTENT OR FEATURE OR THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, AVAILABILITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY THAT EXTENDS BEYOND THE FACE OF THESE TERMS OR THAT HAS BECOME ANY BASIS OF ANY BARGAIN.
- Disclaimer About Products and Services. ALL DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS AND PRICES OF ANY PRODUCT OR SERVICE OFFERED ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES) ARE SUBJECT TO CHANGE AT ANY TIME AND WITHOUT NOTICE TO YOU. CERTAIN WEIGHTS, MEASURES AND OTHER DESCRIPTIONS ARE APPROXIMATE AND ARE PROVIDED FOR CONVENIENCE PURPOSES ONLY.
THE INCLUSION OF ANY PRODUCT OR SERVICE ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES) DOES NOT IMPLY OR WARRANT THAT THEY ARE OR WILL BE AVAILABLE.
IT IS YOUR RESPONSIBILITY TO ASCERTAIN AND OBEY ALL APPLICABLE LOCAL, STATE, FEDERAL AND INTERNATIONAL LAWS (INCLUDING MINIMUM AGE REQUIREMENTS) IN REGARD TO THE RECEIPT, POSSESSION, USE AND SALE OF ANY PRODUCT OR SERVICE ORDERED OR PURCHASED ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES).
WE RESERVE THE RIGHT, WITH OR WITHOUT PRIOR NOTICE TO YOU, TO (I) LIMIT THE AVAILABLE QUANTITY OF OR DISCONTINUE ANY SUCH PRODUCT OR SERVICE; (II) IMPOSE CONDITIONS ON THE HONORING OF ANY COUPON, COUPON CODE, PROMOTIONAL CODE OR OTHER SIMILAR PROMOTION; (III) BAR YOU FROM MAKING OR COMPLETING ANY TRANSACTIONS ON, THROUGH OR IN RELATION TO ANY DIGITAL PLATFORM OR SERVICE; AND/OR (IV) REFUSE TO PROVIDE YOU WITH ANY SUCH PRODUCT OR SERVICE.
- Disclaimer About Linked Technologies. WE ARE NOT RESPONSIBLE FOR ANY INFORMATION, CONTENT, GOODS, SERVICES, PROMOTIONS, ADVERTISEMENTS, PROGRAMS, CODES OR OTHER ITEMS WHICH MAY BE FOUND ON, THROUGH OR EXCLUDED FROM THE LINKED TECHNOLOGIES (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, MALICIOUS SOFTWARE, SPYWARE PROGRAMS, INACCURATE INFORMATION AND ILLEGAL CONTENT).
- Disclaimer About System Delays. YOU UNDERSTAND AND ACKNOWLEDGE THAT EACH DIGITAL PLATFORM AND SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THIRD-PARTY COMMUNICATION NETWORKS AND FACILITIES THAT ARE OUTSIDE OF OUR CONTROL. ACCORDINGLY, WE SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIM, ANY DELAYS, FAILURES, LOSSES, INJURIES, LIABILITIES OR DAMAGES ASSOCIATED WITH THE DIGITAL PLATFORMS OR SERVICES WHICH RESULTS FROM ANY SYSTEM DELAYS, DOWNTIMES, INTERRUPTIONS OR OTHER FAILURES OF OR PROBLEMS WITH A DIGITAL PLATFORM OR SERVICE WHICH ARE OUTSIDE OF OUR CONTROL (INCLUDING, WITHOUT LIMITATION, SCHEDULED MAINTENANCE OR NETWORK FAILURE).
- Disclaimer About Certain Information, Communications and Content. ANY OPINIONS, ADVICE, REVIEWS, STATEMENTS, OFFERS OR OTHER INFORMATION, COMMUNICATIONS OR CONTENT FOUND ON, THROUGH OR IN RELATION TO US, A DIGITAL PLATFORM, ANY OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS (INCLUDING, WITHOUT LIMITATION, ONLINE FORUMS, OTHER WEBSITES, ADVERTISEMENTS, AND SOCIAL MEDIA PAGES) ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND NOT NECESSARILY OURS; THEY SHOULD NOT BE RELIED UPON. SUCH AUTHORS ARE SOLELY RESPONSIBLE FOR THE ACCURACY OF SUCH INFORMATION, COMMUNICATIONS OR CONTENT. WE DO NOT GUARANTEE, ADOPT OR ENDORSE THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT, EVEN IF WE ARE THE AUTHOR. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY THIRD-PARTIES FOR ANY LOSS OR DAMAGE CAUSED BY OR ARISING FROM OR IN CONNECTION WITH YOUR RELIANCE ON ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT.
13. Limitation of Liability and Exclusive Remedy. In consideration for the privilege to use the Digital Platforms and Services, you agree to the following limitations of liability and available remedies:
- TO THE MAXIMUM EXTENT PROVIDED BY LAW, IN NO EVENT, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOL OR CONCURRENT) OF SUCH INDIVIDUAL OR ENTITY, SHALL WE OR ANY OF OUR OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, GENERAL OR LIMITED PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS, ADVERTISERS, SUPPLIERS, LICENSEES, AND THIRD-PARTY PROVIDERS, AND ANY OTHER THIRD-PARTY INVOLVED IN HOSTING, OPERATING, CREATING, PRODUCING, OR DELIVERING A DIGITAL PLATFORM (COLLECTIVELY, THE “DIGITAL PLATFORM PROVIDER PARTIES”) OR SERVICE BE HELD LIABLE TO (OR BE OBLIGATED TO INDEMNIFY) YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY CONSEQUENTIAL, SPECULATIVE, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LEGAL COSTS, ATTORNEY FEES, LOST PROFITS, REPLACEMENT COSTS OR REPAIR COSTS), CAUSED BY OR ARISING FROM OR IN CONNECTION WITH YOUR USE OF A DIGITAL PLATFORM OR SERVICE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BY WAY OF EXAMPLE ONLY AND WITHOUT LIMITATION:
- YOUR VISIT, ACCESS, REGISTRATION WITH, SUBSCRIPTION TO OR USE OF A DIGITAL PLATFORM OR SERVICE, OR YOUR INABILITY TO VISIT, ACCESS, REGISTER WITH, SUBSCRIBE TO USE A DIGITAL PLATFORM OR SERVICE, OR OUR BREACH OF THESE TERMS;
- ANY PRODUCTS OR SERVICES MADE AVAILABLE ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES);
- ANY SUSPENSION, TERMINATION, OR OTHER CHANGE OR MODIFICATION TO A DIGITAL PLATFORM OR SERVICE;
- ANY STATEMENTS, CONTENT OR CONDUCT OF ANY THIRD-PARTY ON, THROUGH OR IN RELATION TO ANY DIGITAL PLATFORM OR SERVICE;
- ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR PERSONAL INFORMATION;
- OUR USE OF ANY USER CONTENT;
- ANY HACKING, DENIAL OF SERVICE ATTACKS, DATA SECURITY BREACHES OR OTHER THIRD-PARTY CONDUCT THAT MAY LEAD TO A COMPROMISE OF YOUR PERSONAL INFORMATION OR DAMAGE TO YOUR DEVICE(S), SOFTWARE, OPERATING SYSTEM(S), FILE(S), CARRIER(S), OR NETWORK(S);
- ANY TRANSMISSION, DOWNLOAD OT INFECTION OF ANY SOFTWARE, SYSTEM, PROGRAM, FILE, PROCESS, DEVICE, APPLICATION OR ROUTINE (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, ROBOTS, SCRAPERS, SPIDERS, VIRUSES, SPYWARE AND MALWARE) TNAT MAY LEAD TO A COMPROMISE OF YOUR PERSONAL INFORMATION OR DAMAGE TO YOUR DEVICE(S0, SOFTWARE, OPERATING SYSTEM(S), FILE(S), CARRIER(S), OR NETWORK(S);
- THE FACT THAT YOU HAVE RELIED ON ANY INFORMATION, CONTENT OR COMMUNICATIONS PUBLISHED ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM OR ANY PRODUCT OR SERVICE OFFERED, SOLD, LICENSED OR MADE AVAILABLE ON, THROUGH ,OR IN RELATION TO THE DIGITAL PLATFORM; OR
- ANY ACTS, ERRORS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS.
- IF YOU ARE DISSATISFIED WITH A DIGITAL PLATFORM OR SERVICE, OR ANY PRODUCT OR SERVICE OFFERED, SOLD, LICENSED OR MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE DIGITAL PLATFORM, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR ACCESS AND USE OF THE APPLICABLE DIGITAL PLATFORM OR SERVICE, OR BOTH.
- BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, LIABILITY IN SUCH JURISDICTIONS FOR SUCH DAMAGES SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM OUR GROSS NEGLIGENCE, OR OUR FRAUD OR FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY IF AND ONLY IF SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
- No Injunctive Relief. YOU SHALL NOT BE ENTITLED TO SEEK OR OBTAIN, AND YOU DO HEREBY WAIVE, ANY TYPE OF INJUNCTIVE RELIEF AGAINST US, A DIGITAL PLATFORM AND/OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON, THROUGH OR IN RELATION TO A DIGITAL PLATFORM (INCLUDING, WITHOUT LIMITATION, THE SERVICES AND ALL USER CONTENT). FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION ON INJUNCTIVE RELIEF DOES NOT LIMIT YOUR ABILITY TO SEEK OR RECOVER ANY MONETARY REMEDIES AUTHORIZED BY LAW IN THE EVENT OF ANY SUCH BREACH OR OTHER VIOLATION (EXCEPT FOR THOSE WHICH ARE OTHERWISE EXPRESSLY PRECLUDED BY THESE TERMS).
- Additional Limits on Liability. SUBJECT TO APPLICABLE LAW ANY CLAIM AGAINST US AND/OR ANY OF THE OTHER DIGITAL PLATFORM PROVIDER PARTIES (AND ANY RESULTING AWARD) SHALL BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, FOR ACCESS TO OR USE OF THE DIGITAL PLATFORM OR SERVICE GIVING RISE TO YOUR ACTION. YOU AGREE TO GIVE US WRITTEN NOTICE OF ANY CLAIM BY YOU AGAINST US WITHIN ONE (1) YEAR OF THE OCCURRENCE OF THE EVENT OR FACT GIVING RISE TO THE CLAIM.
14. Indemnification. You hereby agree to indemnify, release and hold harmless Us and each of the other Digital Platform Provider Parties from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorneys’ fees) incurred by such indemnitee(s), or asserted against such indemnitee(s) by third-parties, arising out of or in connection with (a) your acts, errors or omissions, (b) your access to or use of any Digital Platform or product or Service made available on, through or in relation to a Digital Platform (including, without limitation, any Service) in any manner contrary to these Terms, (c) your violation of the rights of or other injury to any third-party, and/or (d) your breach of all or any part of these Terms.
15. Term; Termination; Survival. These Terms shall continue and remain in effect until terminated in accordance with these Terms. We may terminate these Terms at any time, for any or no reason, and without notice to you (including, without limitation, if We believe that you have violated or acted inconsistently with any term or condition of these Terms). If these Terms are terminated for any reason, then all rights granted to you under these Terms shall automatically revert back to Us, and the following shall survive in perpetuity: (a) all defined terms under these Terms; (b) all rights and privileges under these Terms which were granted to and/or accrued in favor of Us and/or any of Our officers, directors, members, managers, owners, general and limited partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, Suppliers or licensees as of the effective termination date of these Terms (including specifically but without limitation all rights related to User Content); (c) all disclaimers, limitations of liability and limitations of remedies; (d) all terms governing resolution of Disputes (defined in Section 16); and (e) all representations, warranties, covenants, certifications, releases, indemnifications and promises made by you under these Terms.
16. Dispute Resolution and Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS SECTION WILL NOT APPLY WHERE PROHIBITED BY APPLICABLE LAW.
For purposes of Sections 16-18, “Us,” “Our,” and We” shall also include each of the Digital Platform Provider Parties. Notwithstanding any other provision in these Terms, you and We agree and acknowledge that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act will govern their interpretation and enforcement and any proceedings relating to such interpretation or enforcement.
Definition of Dispute
Mandatory Informal Pre-Dispute Resolution Process
Before initiating an arbitration proceeding, you or We must give the other party notice of the Dispute by providing a written “Notice of Dispute” that is personally signed by you (if you are initiating the Notice of Dispute) or Our representative (if We are initiating the Notice of Dispute). The Notice of Dispute must contain the following information: (1) name, contact information (address, telephone number, and email address), and account information if applicable; (2) a detailed description of the nature and basis of the Dispute; and (3) a detailed description of the nature and basis of the relief sought, including a calculation for it.
You must send any such Notice of Dispute to Us by email to firstname.lastname@example.org. We must send any such Notice of Dispute to you at the email address We have on file for you. You and We agree to attempt to resolve the Dispute through informal, good-faith negotiations for a sixty (60) day period from the date that a completed Notice of Dispute is received (or a longer period, if agreed to by the parties). If the party receiving the Notice of Dispute requests a telephone settlement conference as part of this informal process, you and We agree to participate in an effort to resolve the Dispute. Should We make this request, you agree to attend this conference (with your counsel, if you are represented). Should you make the request, We agree to have a representative attend this conference (with counsel, if We are represented).
Compliance with this “Mandatory Informal Pre-Dispute Resolution Process” is a condition precedent to initiating arbitration. Neither you nor We may initiate an arbitration proceeding absent such compliance. If the sufficiency of a Notice of Dispute or compliance with this process is at issue, it may be decided by a court of competent jurisdiction at either party’s election, and any arbitration proceeding shall be stayed. Such court shall have the authority to enforce this condition precedent to an arbitration proceeding, which includes the power to enjoin the filing or prosecution of a demand for arbitration and the assessment and collection of arbitration administrative fees. Notwithstanding the foregoing, either party may elect to raise non-compliance with this Mandatory Informal Pre-Dispute Resolution Process and seek relief in arbitration.
Any applicable limitations period (including the statute of limitations) and any filing fee deadlines shall be tolled while you and We engage in this Mandatory Informal Pre-Dispute Resolution Process in an effort to resolve the Dispute.
Small Claims Court
Any Dispute that falls within the jurisdictional scope and limits of the small claims court where you reside must be brought in that court on an individual basis. Such Dispute must remain in small claims court and may not be removed or appealed to a court of general jurisdiction.
Except as otherwise provided herein, any Dispute that is not resolved through the Mandatory Informal Pre-Dispute Resolution Process or small claims court shall be resolved by binding arbitration to be held in the county or parish in which you reside.
The arbitration shall be administered by Judicial Arbiter Group, Inc. or its successor (“JAG”) and heard by a single, neutral arbitrator. The JAG shall administer the arbitration in accordance with the JAG’s applicable rules including any applicable supplementary rules (“JAG Rules”), as modified by these Terms. If the JAG is unable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an alternative provider that will do so. If the parties cannot agree, they shall jointly petition a court of competent jurisdiction to appoint an arbitration provider that will do so.
The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the JAG Rules and these arbitration provisions. If you are initiating arbitration, you shall serve the demand on Us by email to email@example.com. If We are initiating arbitration, We shall serve the demand at the email address that we have on file for you. The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel, if represented). By signing the demand for arbitration, that party (and their counsel, if represented) certifies that they have complied with (1) the Mandatory Informal Pre-Dispute Resolution Process (and they shall attach the Notice of Dispute) and (2) the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would.
The JAG Rules shall govern the payment of all arbitration fees. You and We agree that arbitration is designed to be cost-effective for all parties. If a filing or other fee to initiative arbitration before JAG is required, either party may engage with JAG to discuss fee reductions and deferred payments. All issues are for the arbitrator to decide except the following, which are for a court of competent jurisdiction to decide: (1) issues that are specifically reserved for a court in these Terms and (2) issues related to the scope and enforceability of the arbitration provisions.
The arbitrator may award relief, including, but not limited to, monetary, declaratory, injunctive, or other equitable relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator must follow these Terms and can award the same individualized damages and relief as a court, including injunctive or other equitable relief necessary to provide relief as to the individualized claim. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Unless you and We otherwise agree, one person’s claims may not be consolidated with those of any other person. If a court determines that a claim or request for public injunctive relief may not be waived and all appeals from that decision have been exhausted (or it is otherwise final), you and We agree that any claim or request for public injunctive relief shall be stayed and resolved by a court pending arbitration of the remaining claims and requests for relief.
The decision of the arbitrator shall be in writing and shall set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered in court. The decision of the arbitrator shall have no preclusive effect in any proceeding involving non-identical parties.
Each party reserves the right to request a telephonic, video, or in-person hearing from the arbitrator. You and Our representative shall personally appear at any hearing ordered by the arbitrator (along with your and Our counsel, if represented). For claims of more than $25,000 (and for claims seeking individualized injunctive, equitable, or declaratory relief that are not subject to small claims court as set forth above), a telephone, virtual, or in-person hearing shall be held and you and Our representative shall personally appear (along with your and Our counsel, if represented). The parties can agree to waive a hearing.
Additional Procedures for Multiple Case Filings
The following provisions set forth additional procedures that apply to multiple case filings. If fifty (50) or more similar claims are asserted against Us by the same or coordinated counsel or are otherwise coordinated (and your claim is one of them), you understand and agree that these additional procedures shall apply and the resolution of your Dispute might be delayed. Except as provided for below, no arbitrator or arbitration provider shall have any authority to hear, arbitrate or administer any class, coordinated, collective, consolidated, private attorney general, or representative action, or to award relief to anyone but the individual in arbitration.
- Stage One: Counsel for the claimants and counsel for Us shall each select fifty (50) claims per side to be filed and to proceed in individual arbitrations as part of an initial staged process. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a claim is withdrawn prior to adjudication, another claim shall be randomly selected to be filed and to proceed in this set. After this initial set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge and We shall pay the mediator’s fee.
- Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Us shall each select seventy-five (75) claims per side to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a claim is withdrawn prior to adjudication, another claim shall be randomly selected to be filed and to proceed in this set. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge, and We shall pay the mediator’s fee.
Each case within any given stage shall be assigned to a different, single arbitrator, unless the parties otherwise agree in writing. If your claim is not resolved as part of the staged process set forth above, either:
- Option One: You and We may, separately or by agreement, opt out of arbitration and elect to have your claim heard in a court of competent jurisdiction consistent with these Terms. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out to Us by email at firstname.lastname@example.org within thirty (30) days after the conclusion of Stage Two. We may opt your claim out of arbitration by sending an individual, personally signed notice of Our intention to opt you out to your counsel within fourteen (14) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.
- Option Two: If neither you nor We elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved through continued staged proceedings as set forth below. Assuming the number of remaining claims exceeds two hundred (200), then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Each of these 200 cases shall be assigned to a single, different arbitrator. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and the JAG to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
Any relevant limitations period and filing fee or other deadlines shall be tolled subject to these Additional Procedures for Multiple Case Filings from the time the first cases are selected for a staged process until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Multiple Case Filings and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment and collection of arbitration fees. If these Additional Procedures for Multiple Case Filings apply to your claim, and a court of competent jurisdiction determines they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with these Terms.
Opt Out of Future Changes
If We make any future change to the arbitration provisions in this Section 17 (other than a change to the notice address), you may reject any such change by sending Us a personally signed, written notice of your decision to opt out of those changes by email to email@example.com within thirty (30) days of notice of the change and include your full name and your mailing address, telephone number, and email address, and a description of when and how you interacted with Us. Such opt out must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement that you wish to reject the change to the arbitration provisions. This is not an opt out of arbitration altogether.
17. Class Action Waiver and Jury Trial Waiver.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. THIS SECTION WILL NOT APPLY WHERE PROHIBITED BY APPLICABLE LAW.
You and We agree that, to the fullest extent permitted by applicable law and as otherwise expressly and only as provided for in Section 16, any and all Disputes between you and Us shall be resolved only in individual arbitration. Each of you and Us expressly waive the right to have any Dispute brought, heard, administered, resolved, or arbitrated as a class, collective, coordinated, consolidated, and/or representative action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any class, collective, coordinated, consolidated, and/or representative action, or to award relief to anyone but the individual in arbitration. This means that you and We may not bring a Dispute on behalf of a class or group and may not bring a Dispute on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. You and We also expressly waive the right to seek, recover, or obtain any non-individual relief. Notwithstanding anything else in this agreement, this class action waiver does not prevent you or Us from participating in a classwide, collective, and/or representative settlement of claims.
You and We further agree that if for any reason a claim does not proceed in arbitration, this class action waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple individuals against Us in a single proceeding, except that this class action waiver shall not prevent you or Us from participating in a classwide, collective, and/or representative settlement of claims. If there is a final judicial determination that any portion of this class action waiver is unenforceable or unlawful for any reason, (i) any class, collective, coordinated, consolidated, and/or representative claims subject to the unenforceable or unlawful portion(s) shall proceed in a court of competent jurisdiction as provided for in these Terms; (ii) the portion of the class action waiver that is enforceable shall be enforced in arbitration; (iii) the unenforceable or unlawful portion(s) shall be severed from the arbitration agreement contained in these Terms; and (iv) severance of the unenforceable or unlawful portion(s) shall have no impact whatsoever on the enforceability, applicability, or validity of the arbitration agreement contained in these Terms or the arbitrability of any remaining claims asserted by you or Us.
To the fullest extent permitted by applicable law, you and We waive any right to a jury trial.
18. Governing Law and Venue.
All Disputes and the relationship between you and Us shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Colorado in the United States of America and applicable federal law of the United States of America, regardless of its place of execution, its place of performance, and any conflicts of law analysis. For the avoidance of any doubt, the United Nations Convention on Contracts for the International Sale of Goods shall have no application whatsoever.
Unless you and We agree otherwise, to the fullest extent permitted by applicable law, the state and federal courts of the City and County of Denver, Colorado shall have exclusive jurisdiction over any Disputes between you and Us (except for Disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of any provisions of these Terms (including the arbitration provisions and class action waiver). You and We consent to the exclusive jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis to seek transfer or change venue of such action to another court.
Unless otherwise expressly stated in these Terms, We may give or deliver all other notices to you by means of a general notice posted on this or another page of a Digital Platform, as applicable and/or by email to the email address you provide to Us, and any notice provided to you shall be deemed effective as of its stated effective date.
In no event shall these Terms, the performance of your or Our rights or obligations under these Terms, a Digital Platform, a Service or your visit to, access of, registration with, subscription to or use of a Digital Platform or Service create any type of fiduciary, franchise, agency, employment, independent contractor, partnership or joint venture relationship between you and Us.
21. Separate Terms and Conditions.
In connection with your access to or use of a Digital Platform or Service, you may be asked to consent to policies or terms and conditions in addition to these Terms. Please read these supplemental policies and terms carefully before accessing or making any use of such Digital Platform or Service, or portion thereof. Any supplemental terms will not vary or replace these Terms regarding any access to or use of the Digital Platform or Service, unless otherwise expressly stated, and in the event of a conflict between such special terms and these Terms, these Terms apply.
22. International Users.
The Digital Platforms and Services are operated out of the United States of America. We do not represent that content or material presented on any Digital Platform or through any Service is appropriate (or, in some cases, even available) for use in other locations. If you access a Digital Platform or Service from a jurisdiction other than the United States, you agree that you do so on your own initiative, and are responsible for compliance with all applicable laws, if and to the extent local laws are applicable to your use of the Services.
- Excused Performance. We are hereby excused for any failure to perform under these Terms to the extent that Our performance is prevented by any reason outside of Our reasonable control or that may be characterized as a force majeure event.
- Assignment and Delegation. You shall not assign, delegate, or otherwise transfer any of your rights or obligations under these Terms without Our prior written consent in each instance. We are free to assign or delegate all or some of Our rights accrued pursuant to, or obligations under, these Terms, to any third-party.
- Construction and Interpretation. These Terms shall be construed to have been drafted by all of the Parties, so that any rule of construction or interpretation that construes or interprets ambiguities against the drafter shall have no force or effect.
- Headings. Section headings are inserted in these Terms for reference and convenience only and shall not interpret, define, limit or describe the scope, intent, terms or conditions of these Terms.
- Severability. If any portion of these Terms is deemed invalid or unenforceable by the arbitrator or (if applicable) a court of law with binding authority, then the remaining terms and conditions shall not be affected and said arbitrator or court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the intent of these Terms.
24. Digital Platforms Purchased or Downloaded through the Apple App Store; Apple Not a Party.
25. Notice for California Consumers.
UnderCalifornia Civil Code Section 1789.3, California users of a Digital Platform or Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
26. Software/Compliance with Applicable Laws/Regulations.
27. Contact Us.
Please direct any questions you may have about a Digital Platform or Service or these Terms to firstname.lastname@example.org. The foregoing contact information may change from time-to-time, and with notice to you, as provided for in these Terms.