User Agreement for Digital Domains LTD.
Effective Date: February 21, 2019
I. PRELIMINARY PROVISIONS
Welcome to Our User Agreement (“Agreement”). This document includes important provisions governing the use of XSportsbook.com (the “Website” or “Site”). Please review the entire Agreement before accepting.
1. THIS SITE INCLUDES INFORMATION ABOUT ONLINE GAMING: WE ARE JOURNALISTS WHO WRITE ABOUT GAMING, AND OFFER OTHERS AN OPPORTUNITY TO EXPRESS THEIR VIEWS AND OPINIONS. This Website does not recommend or encourage gambling, whether it is illegal or legal. This Website is a journalistic enterprise that acts as a watchdog over the online wagering industry. All sportsbook ratings are for amusement and educational purposes only, and should not be relied upon for any gambling, financial, or other transaction. If You are seeking anything other than neutral reportage on this industry, You are visiting the wrong Website and You should exit this Website immediately.
2. PROTECT YOURSELF:
a. IF YOU THINK YOU HAVE A GAMBLING ADDICTION. Do not access the information contained on the Site if You feel that You may have a gambling problem. If You suspect that You have a gambling problem, exit this Site immediately and seek help for Your addiction. For those seeking help immediately, consider the following resources:
b. ONLINE GAMING IS NOT LEGAL IN CERTAIN AREAS. Consult Your local authorities before participating in online wagering of any kind. Nothing contained on this Site should be construed as legal advice on any activity relating to gambling.
c. GAMBLING IS FOR AMUSEMENT, NOT FOR INCOME. Statistics conclusively prove that nearly all gamblers will lose money over the long term.
d. DO NOT USE THIS SITE IF YOU ARE UNDER 18. This Site is not designed for minors. You must be 18 or older to access this Website.
B. Party Definitions and Introductory Terms
1. The operative parties referred to in this Agreement are as follows:
a. Us, the Publisher. Digital Domains LTD, is the publisher of the Website located at XSportsbook.com . Hereinafter, when first-person pronouns are used in this Policy, (Us, We, Our, Ours, etc.) they are referring to this entity and publisher of the applicable Website. This entity may also be referred to as “Publisher” from this point forward. Additionally, when the terms “the Site” or “Site” are used, these terms refer to the aforementioned Website.
b. You, the User. As the user of this Site, this User Agreement will refer to the user as “You” or through any second-person pronouns, such as “Yours” etc. Hereinafter, the user of the Site shall be referred to in applicable second-person pronouns.
a. Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to access Our online publication free of charge.
b. You agree that such Consideration is both adequate, and that it is received upon Your viewing any portion of Our Website.
C. What this Agreement is: This Agreement is a legal contract between You and the Publisher. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Site in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other services provided by the Publisher.
D. Electronic Signatures / Assent Required: Nobody is authorized to access this Site unless they have signed this Agreement. Such signature does not need to be a physical signature, since this Agreement can be accepted by electronic methods under the Electronic Signatures in Global and National Commerce Act (E-Sign Act), and similar laws. You manifest Your agreement to this User Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract.
If You fail to sign this Agreement, You understand that You are an unauthorized user of the Site, despite any other actions taken by You. No act or omission by the Publisher should be interpreted as a waiver of the requirement that You assent to this User Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Publisher’s services. However, if You fail to electronically sign this Agreement, You stipulate to and agree to pay the Publisher $250 each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorney’s fees and costs, incurred in collecting this unauthorized access fee from You.
E. Revisions to this User Agreement:
1. From time to time, We may revise this Agreement. You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
2. We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.
3. If You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
II. ACCESS AND LIMITED LICENSE: All Users may access certain public areas of the Site. This User Agreement covers all public and non-public areas of the Site. The Publisher grants You a limited, nonexclusive, nontransferable personal license to access and use the Site and the Materials contained therein. Any unauthorized use of the Site or any of the Materials contained therein terminates this limited license effective immediately. You will not copy or redistribute any of the content appearing on this Site. Publisher reserves the right to terminate this license at any time if You breach or violate any provision of this Agreement, in which case You will be obligated to immediately destroy any information or materials You have downloaded, printed, or otherwise copied from this Site. Violators of this limited license may be prosecuted to the fullest extent under the applicable law.
III. SPECIAL CONSIDERATIONS REGARDING MINORS
A. Age of Majority. In order to use the Site or any services provided by the Publisher, You must have attained the age of majority in Your jurisdiction. You represent and warrant You are at least 18 or 21 years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement. If You are not at least 18 or 21 years of age, depending on the age of majority in Your jurisdiction, You must exit the Site immediately and may not use or access the Site or print or download any Materials from the Site whatsoever.
A. The text, software, images, graphics, data, messages, or other information, and any other World Wide Website owned, operated, licensed, or controlled by the Publisher is all collectively referred to as “the Materials.”
B. The Materials include links and informational content reporting on the subject of online wagering and gambling. Internet gambling is not legal in certain areas. You agree that You will consult Your local authorities or Your personal attorney prior to registering with any online wagering service. In any event, by accessing this Site, and agreeing to these terms and conditions, You are now, and forever, giving up Your right to bring any claims against Us for any cause of action related to Your use of the Site or any Website linked to on Our Site.
C. You have no right to blame the Publisher or to seek any compensation of any kind from the Publisher if You ignore the law or if You are ignorant of the law surrounding online gambling. You agree that if You play on or sign up for any online gambling links that You may find on Our Site, that You assume full responsibility for Your actions, and You will not hold the Publisher responsible for any losses, damages, or any other negative impact that may come from Your decision to gamble.
D. You acknowledge and stipulate that all of the Materials found on Our Site are fully protected by the First Amendment to the United States Constitution.
E. You are not permitted to post sportsbook ads, special promotions, enticements, or call-to-action banners that may encourage Users, readers, or viewers to join any sportsbook wagering service.
F. If You are seeking information regarding any illegal activities, please leave this Site immediately. You acknowledge that You are aware of the community standards, restrictions and requirements in Your local community, and You will only access the content on the Site if You believe that the content on the Site does not offend such standards, restrictions and requirements prevalent in Your community.
G. You agree not to use or access the Site if doing so would violate the laws of Your state, province, or country.
H. Under no circumstances, under no cause of action or legal theory, shall the owners, creators, associates or employees of this Website be liable to You or any other person or entity for any direct, indirect, special, incidental, or consequential damages of any kind whatsoever.
V. RESTRICTIONS ON USE OF SITE:
A. You agree that You will only use the Site for purposes expressly permitted and contemplated by this User Agreement. You may not use the Site for any other purposes without Our express prior written consent.
B. Without Our express prior written authorization, You may not:
1. Duplicate any part of the Site or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
2. Create any derivative works based on the Site or any of the Materials contained therein, and You agree and stipulate that any and all derivative works are NOT “fair use”;
3. Use the Site or any of the Materials contained therein for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use”;
4. Re-distribute the Site or any of the Materials contained therein, and You hereby agree and stipulate that any and all such uses are NOT “fair use”
5. Remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;
6. Frame or utilize any framing techniques in connection with the Site or any of the Materials contained therein;
7. Use any meta-tags or any other “hidden text” using the Site’s name or marks, and You hereby stipulate that any use of the Site’s name or marks, or any other marks owned by the Publisher is an infringement upon the Publisher’s trademark rights, and You stipulate to liquidated damages of $5000 per such infringement, plus You agree to pay any and all fees incurred in the recovery of this amount, including attorney’s fees and all associated costs.
8. Avoid agreement to the Site’s Terms & Conditions; You may only link to the main entry page;
9. Circumvent any encryption or other security tools used anywhere on the Site (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Site);
10. Use any data mining, bots, or similar data gathering and extraction tools on the Site;
11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;
12. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of Your rights to access and use the Materials as granted specifically by this Agreement; or
C. You agree to cooperate with the Publisher in causing any unauthorized use to cease immediately. With respect to any areas of the Site which enable users to share information or communicate with other users, You agree not to publish, disseminate, or submit any defamatory, or illegal material while using the Site or other services included on the Site. You are solely responsible for submitting any material that violates any United States or International laws even if a claim arises after Your service is terminated, and by doing so, Your actions shall constitute a material breach of this Agreement and the Site shall terminate all of Your rights under this Agreement.
D. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of the Publisher’s Materials or any other Materials from Our Site. User hereby agrees not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of $5000 plus any and all fees associated with recovery of these damages, including attorney’s fees and costs.
E. Special Provisions
1. The theory of “collective wisdom” provides that the aggregation of information provided by groups of individuals results in decisions that are often better than those that can be made by any single member of the group.
2. It has been suggested that this theory can predict economic events, political events, and even the likelihood of acts of terrorism.
3. This theory, on average, has a tendency to suggest the outcome of sporting events as well.
4. The SBR Odds are provided purely for entertainment purposes.
5. You agree that You will not hold Us responsible for Your use of the SBR Odds feature in any way.
VI. DISCLAIMER OF WARRANTY:
A. You expressly agree that use of the Site or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site or any of the materials or links contained therein is done at Your own discretion and risk and that You will be solely responsible for any losses that may occur as a result.
B. The Site and all materials contained therein are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. Information on this Site is collected from outside sources and/or is opinion and is offered “as is” without warranties of accuracy of any kind.
C. Publisher makes no representations or warranties that the Site or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does Publisher make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site or any of the materials contained therein.
D. You understand that Publisher cannot and does not guarantee or warrant that files available for downloading from the internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. Publisher does not assume any responsibility or risk for Your use of the internet.
E. Publisher makes no warranty regarding any goods or services purchased or obtained through the Site or any transaction entered into through the Site and is not responsible for any use of confidential or private information by sellers or third parties.
F. Publisher may change any of the information found on this Site, including this User Agreement, at any time without notice. Site owner makes no commitment to update the information found at this Site. Site makes no commitment to update the materials.
G. The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.
VII. ADDITIONAL DISCLAIMERS AND INDEMNIFICATION
A. Use of the Site or any of its services in violation of any laws is strictly prohibited. If We determine that You or any user has engaged in any act in violation of any law, Your ability to use the Site will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any user providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for Us should You violate any law.
B. You also agree to defend and indemnify Us should any third-party be harmed by Your illegal actions or should We be obligated to defend any claims including, without limitation, any criminal action brought by any party.
C. You agree to defend, indemnify, and hold harmless the Publisher, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your, or You under another person’s authority including without limitation to governmental agencies, use, misuse, or inability to use the Site or any of the Materials contained therein, or Your breach of any of this User Agreement. Publisher shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but are not obligated to do so. We may also settle claims upon notification to You.
D. You further discharge, acquit, and otherwise release us, Our parent company, agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of the Website including, but not limited to claims relating to the following: Fraud, Cheating, Discrimination, Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Privacy, Commercial Exploitation, Gambling, Intellectual Property, Trade Secrets, Misrepresentation, any financial loss not due to the fault of the Site, missed meetings, unmet expectations, false identities, fraudulent acts by others, invasion of privacy, release of personal information, failed transactions, purchases from or functionality of the Site, unavailability of the Site, its functions and/or Services, and any other technical failure that may result in inaccessibility to the Site, or any claim based on Vicarious Liability for Torts committed by individuals met on or through the Site and Services, including but not limited to theft or misuse of personal information, assault, battery, stalking, rape, cheating, perjury, manslaughter, or murder.
VIII. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES:
A. Unless caused by Our gross negligence or willful and wanton misconduct, We limit Our total liability to You for any claims arising from these terms or Your access to the Website solely to Your actual damages, if any. However, Our total liability to You will not exceed the lesser of $50 USD or the total amount You paid Us during the 12-month period before You made Your claim. Recovery of these damages will be Your sole and exclusive remedy. We disclaim any liability for any other damages of any kind arising out of these terms or Your access to the Website.
B. Unless caused by the other’s gross negligence or willful and wanton misconduct, neither party will be liable to the other party for any special, indirect, incidental, consequential, exemplary, or punitive damages arising out of these terms or the Website. This exclusion applies even if the other party knew or should have known about the possibility of the damages.
C. The mutual exclusion of special, indirect, incidental, consequential, exemplary, or punitive damages is independent of Your exclusive remedy and survives even if Your exclusive remedy fails its essential purpose or a court or tribunal of competent jurisdiction otherwise deems Your exclusive remedy unenforceable.
D. The limitations and exclusions in this section apply regardless of the theory of liability asserted, whether strict liability, breach of warranty (express or implied), breach of contract, tort, or any other legal theory.
IX. LINKS AND LINKING:
A. Some websites which are linked to the Site are owned and operated by third parties. Because the Publisher has no control over such websites and resources, You acknowledge and agree that Publisher is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
B. You further acknowledge and agree that Publisher shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third-party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
D. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Site, but are for user’s convenience.
E. All users do hereby agree to hold the Publisher harmless from any and all damages and liability that may result from the use of links that may appear on the Site. The Publisher reserves the right to terminate any link or linking program at any time.
X. TRADEMARK INFORMATION:
A. Publisher and the aforementioned name of the Site is a service mark and/or trademark of the Site. The name of the Site and the name of the Publisher are considered trademarks owned by the Publisher. We aggressively defend Our intellectual property rights.
B. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
C. All of the marks, logos, domains, and trademarks that You find on the Site may not be used publicly except with express written permission from Publisher, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Publisher.
XI. COPYRIGHT INFORMATION:
A. The Materials accessible from the Site, and any other website or mobile application owned, operated, licensed, or controlled by Publisher, is the Publisher’s proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials.
B. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of Publisher. You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials.
C. Modification or use of the Content except as expressly provided in this User Agreement violates the Publisher’s intellectual property rights.
D. Neither title nor intellectual property rights are transferred to You by access to the Site.
E. All Materials included on the Site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of the Publisher or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the Site is the exclusive property of the Publisher or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations. © Digital Domains LTD, (2018), all rights reserved.
XII. USER SUBMISSIONS
B. For each submission You make to the Website, You certify to us that:
1. You own or retain the necessary right to use and authorize Us to use all copyrights, trademarks, trade secrets, patents, or other proprietary rights in and to the submission to enable inclusion and use of the submission in the manner contemplated by the Website and these terms;
2. You will not post any content depicting any person under 18-years old;
3. You have inspected and are maintaining written documentation sufficient to confirm that all subjects of Your submission are in fact 18-years old or older; and
4. You have the written consent or release of each identifiable person in the submission to use their name or likeness to enable inclusion and use of the submission in the manner contemplated by the Website and these terms.
C. You retain all of Your ownership rights in Your submissions. However, You grant Us a worldwide, perpetual, nonexclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the submissions for the Website and Our (and Our successor’s) business, including for promoting and redistributing any part of the Website (and derivative works of it) in any media formats and through any media channels. This license shall include, but is not limited to, the right to copy and transfer Your entire profile, or portions thereof, and all its content, including text, pictures, photographs, personal description, and any contact information, to any affiliate or related or partner sites of Ours and to post such content on different pages of the Website at Our sole discretion. We shall not be subject to any obligations of confidentiality regarding any such information unless specifically agreed by Us in writing or required by law. You are solely responsible for Your submissions and the consequences of posting them to the Website. You will not submit to the Website any content:
1. That is copyrighted, trademarked, patented, protected by trade secret, or otherwise subject to third-party proprietary rights—including privacy and publicity rights—unless You are the owner of the rights or have permission from the rightful owner to post the content and to grant Us all of the license rights;
2. That publishes falsehoods or misrepresentations that could damage Us or any-third party;
3. That is illegal, unlawful, threatening, defamatory, obscene, seditious, offensive, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy, portrays individuals in a “false light” or may cause annoyance or inconvenience;
4. That constitutes or encourages conduct that would be considered a criminal offense, give rise to civil liability, or would otherwise be contrary to the law of or violate the rights of any third-party in any jurisdiction in the world;
5. That constitutes advertisements or solicitations of business;
6. That impersonates another person; or
7. That is technologically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, or other malicious software or harmful data).
D. We have no responsibility for, We do not endorse (expressly or implicitly), and We expressly disclaim all liability for any user-generated content submitted to the Website. We do not permit copyright infringing activities or infringement of other intellectual property rights on the Website, and We will remove all content and submissions if properly notified that the content or submission infringes on another’s intellectual property rights. We reserve the right to remove content and submissions without advance notice or delay. We also reserve the right to terminate a user’s access to the Website, in accordance with Our Repeat Infringer Policy, if We determine the user is an infringer. We reserve the right to decide if the content or submission is appropriate and otherwise complies with these terms. We may remove submission or terminate a user’s access for uploading content that violates these terms at any time without prior notice.
E. You understand that the content displayed on the Website is primarily posted by users, and that We do not prescreen or preemptively monitor the content. Thus, You understand that when accessing the Website, You may be exposed to submissions from a variety of sources, and that We are not responsible for the accuracy, usefulness, safety, or intellectual property rights for these submissions. You further understand that You may be exposed to submissions that are inaccurate, offensive, illegal, indecent, obscene, or objectionable, and You waive any rights or remedies You have or may have against Us for this exposure. We may refuse to publish, remove, or block access to any submission that is available through the Website or Our network or services without notice.
F. We provide this Website as an entertainment service to Our users. We assume no responsibility for monitoring the Website for inappropriate or inaccurate user-submitted content. If We choose to monitor the Website at any time, We assume (1) no responsibility for the content, (2) no obligation to modify or remove any inappropriate content, and (3) no responsibility for the conduct of the user submitting that content. We may review and delete any submissions that violates these terms or that may be otherwise offensive or illegal. We may also review and delete any submissions that harm or threaten the safety of any user or person not associated with the Website, or that otherwise violates another person’s rights. You are solely responsible for the submissions that You make to the Website and for any other material or information that You transmit or share with other users or unrelated persons through the Website.
G. We will fully cooperate with any law enforcement authorities or orders from courts of competent jurisdiction, requesting or directing Us to disclose the identity or location of anyone posting content in breach of these terms, in accordance with Our privacy policies, subpoena compliance policies, data retention policies, and applicable law or regulation. If Your activity results in the Website receiving a subpoena, discovery request, or court order that causes the Website to incur expenses, court costs, or legal fees for compliance, You agree to reimburse Us for any such expenses, costs or legal fees upon Our request.
XIII. NOTICE AND DMCA TAKEDOWN PROCEDURES:
We respect the intellectual property rights of all parties, and voluntarily comply with the Digital Millennium Copyright Act (“DMCA”). We have adopted a policy regarding termination of repeat copyright infringers in compliance with the DMCA. Copies of Our Repeat Infringer Policy are available to users upon request.
XIV. NO AGENCY RELATIONSHIP:
Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
A. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the Site, or personal delivery by commercial carrier such as UPS or Federal Express. Notices by customers to Publisher shall be given by electronic messages unless otherwise specified in the Agreement.
B. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by commercial carrier (e.g., UPS or Federal Express) shall be deemed delivered when actually delivered to the recipient’s address by the carrier. Notices delivered by any other method shall be deemed given upon receipt.
D. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XVI. COMMUNICATIONS NOT PRIVATE:
Publisher does not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Publisher shall be deemed to be readily accessible to the general public. Visitors should not use this Site to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered into this Site can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
XVII. FORCE MAJEURE:
Publisher shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; data breach, hacking, SPAM, criminal acts of third parties, or any failure of a computer, server or software, including errors or omissions, for so long as such event continues to delay the Site’s performance.
XVIII. CLASS ACTION WAIVER:
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor We will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or judicial proceeding will be combined with another without the advanced written consent of all parties to all affected arbitrations or proceedings.
XIX. GENERAL PROVISIONS:
A. Governing Law, Jurisdiction, Forum, and Venue. This User Agreement and all matters arising out of, or otherwise relating to, this User Agreement shall be governed by the laws of Nevada, excluding its conflict of law provisions. The sum of this paragraph is that any and all disputes that are not subject to mandatory arbitration must be, without exception, brought to court and litigated in Washoe County, Nevada.
1. All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement shall be arbitrated and/or litigated exclusively in in Washoe County, Nevada.
2. The parties agree to exclusive jurisdiction in, and only in, Washoe County, Nevada.
3. The parties agree to exclusive venue in, and only in, Washoe County, Nevada.
4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
6. All parties stipulate that the state and federal courts located in Washoe County, Nevada shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
B. Rights to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
C. Binding Arbitration. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall first negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, and actions by the Publisher for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Washoe County, Nevada, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms and Conditions; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
D. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this User Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
E. No waiver of right to arbitration — There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
F. The First Amendment applies to arbitration proceedings — Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
G. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
H. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this User Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this User Agreement will continue in full force and effect.
I. Attorney’s Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
J. Complaints-California Residents. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/about_dca/contactus.shtml. You understand and agree that by assenting to this Agreement, You waive any applicability of California Civil Code §1542 as it may be applied to Your release of legal claims arising from Your use of the Site and/or services.
K. Export Control. You understand and acknowledge that the software elements of the materials on the Site may be subject to regulation by governmental agencies which prohibit export or diversion of software and other goods to certain countries and third parties. Diversion of such materials contrary to United States’ or international law is prohibited. You will not assist or participate in any such diversion or other violation of applicable laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations. You agree that none of the materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
L. English Language. We have written this Agreement and Our associated Website policies in the English language. You are representing Your understanding and assent to the English language version of this Agreement as it is published. We are not liable to You or any third-party for any costs or expenses incurred in translating this Agreement. In the event that You choose to translate this Agreement, You do so at Your own risk, as only the English language version is binding.
M. No Waiver. No waiver or action made by the Publisher shall be deemed a waiver of any subsequent default of the same provision of this User Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this User Agreement.
N. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this User Agreement.
O. Complete Agreement. This User Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site and the Materials contained therein, and Your Membership with the Site, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
P. Other Jurisdictions. Publisher makes no representation that the Site or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws.
Q. Stipulated Liquidated Damages:
1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
2. For any breach of a portion of this Agreement that does not specifically state another liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of $100 per occurrence. You specifically agree to pay this $100 in liquidated damages.
3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.