Last Updated: February 1, 2023
Osprey Management LLC, a limited liability company (the “Company”), welcomes you to www.osprey-management.com (the “Platform”). It is important to the Company that you and other visitors have the best possible experience while using the Platform, and that, when you use the Platform, you understand your legal rights and obligations. Please read this terms-of-service agreement, which is a binding agreement between you and the Company that governs your access to and use of the Platform, including any content, functionality, and services offered on or through the Platform. You may use the Platform only if you agree to this agreement. Please pay special attention to the following provisions: (1) disclaimer of warranties (section 18); (2) limit on liability and exclusion of damages (sections 19 and 20); (3) place for resolving disputes (section 24.2); (4) mandatory arbitration (section 24.3); (5) class action waiver (section 24.7); and (6) limitation on time to file disputes (section 24.8).
Notice Regarding Dispute Resolution: This agreement contains provisions that govern how claims you and we may have against each other are resolved (see section 24 below), including an agreement and obligation to arbitrate disputes, which will require you to submit claims you have against us to binding arbitration. Please read the arbitration provision (section 24.3) in this agreement as it affects your rights under this agreement.
Minors Prohibited. The Platform is not intended for minors. Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Platform. The Company forbids all persons who do not meet these age requirements from accessing the Platform.
1. Accessing the Platform. The Company may withdraw or amend the Platform, and any service or material it provides on the Platform, in its sole discretion without notice. The Company will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, the Company may restrict access to some parts of the Platform, or the entire Platform, to users, including registered users. Access to the Platform may require the use of your personal computer or mobile device, as well as communications with or use of space on those devices. You are responsible for any Internet connection or mobile fees and charges that you incur when access the Platform.
2. Your Account
2.1 Account Creation. To access many of the Platform’s features, you must create an account. Registration is free and for a single user only. To register, you must complete the registration process by providing the Company with accurate information as prompted by the applicable registration form. You also must choose a password and a username. The username must not be offensive and must not infringe another person’s service mark, trademark, or trade name. By registering, you state that (a) all account registration, and profile information you provide is your own and is accurate; (b) if you previously had an account on the Platform, your old account was not terminated or suspended by the Company for violation of this agreement; and (c) your creating an account for your own personal use. In addition, if using or opening an account with the Platform on behalf of an entity, you state that you (d) are an authorized representative of that entity with the authority to bind that entity to this agreement and grant the licenses granted in this agreement; and (e) agree to this agreement on behalf of that entity.
2.2 Responsibility for Account. You are responsible for keeping your password and account confidential. Further, you are responsible for all activities that occur under your account. You must notify the Company promptly of any unauthorized use of your account or any other security breach. You must not sell, rent, lease, share, or provide access to your account to anyone else, including charging anyone for access to administrative rights on your account. The Company may disable any username, password, or other identifier, whether chosen by you or provided by the Company, at any time in its sole discretion for any reason or no reason, including if, in the Company’s opinion, you have violated any part of this agreement.
2.3 Liability for Account Misuse. The Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You could be held liable for losses incurred by the Company or another party due to someone else using your account or password.
2.4 Use of Other Accounts. You must not use anyone else’s account at any time.
2.5 Account Security. The Company cares about the integrity and security of your personal information. But the Company cannot guarantee that unauthorized third parties will never be able to defeat the Platform’s security measures or use any personal information you provide to the Company for improper purposes. You acknowledge that you provide your personal information at your own risk.
3. Intellectual-Property Rights
3.1 Ownership. The Company owns and operates the Platform. Unless otherwise indicated, all content, information, and other materials on the Platform (excluding User Contributions, set out in section 7 below), including the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement of them (collectively, the “Materials”) are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. All Materials contained on the Platform are the property of the Company or its subsidiaries or affiliated companies or third-party licensors.
3.2 License Grant. The Company hereby grants you a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Platform for your internal business use only. You must not reproduce, distribute, resell, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Materials on the Platform, except as follows:
(a) Your computer may temporarily store copies of those Materials in RAM incidental to your accessing and viewing those materials.
(b) You may store files that are automatically cached by your Web browser for display enhancement purposes.
(c) You may print or download one copy of a reasonable number of pages of the Platform website for your own personal, noncommercial use and not for further reproduction, publication, or distribution.
(d) You may download or stream any Materials to which you have properly gained access solely for your personal, noncommercial use and not for further reproduction, publication, or distribution.
(e) If the Company provides desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, noncommercial use, on condition that you agree to be bound by the Company’s end user license agreement for those applications.
(f) If the Company provides social media features with certain content, you may take those actions as are enabled by those features.
3.3 License Restrictions
(a) You must not:
(i) Modify copies of any Materials from the Platform.
(ii) Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
(iii) Delete or alter any copyright, trademark, or other proprietary rights notices from copies of Materials from the Platform.
(b) You must not access or use for any commercial purposes any part of the Platform or the Services or Materials available through the Platform unless the Company agrees otherwise in writing.
(c) If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Materials in breach of this agreement, your right to use the Platform will stop immediately and you must, at the Company’s option, return or destroy any copies of the Materials you have made. No interest in or to the Platform or any content on the Platform is transferred to you, and the Company reserves all rights not expressly granted. Any use of the Platform not expressly permitted by this agreement is a breach of this agreement and may violate copyright, trademark, and other laws.
3.4 Trademarks. The Company’s name; the Company logo; the terms OSPREY -MANAGEMENT; and all related names, logos, product and service names, designs, and slogans, as well as the look and feel of the Platform, including all page headers, custom graphics, button icons, and scripts are trademarks or trade dress of the Company or its affiliates or licensors. You must not use those marks in whole or in part in connection with any product or service that is not the Company’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Company, without the Company’s prior written permission. Any use of these trademarks must be in accordance with any guidelines that the Company may provide you from time to time. All other trademarks, names, logos, product and service names, designs, and slogans on this Platform are the trademarks of their respective owners. Reference on the Platform to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation of it by the Company or any other affiliation.
4. Prohibited Uses
4.1 You must use the Platform only for lawful purposes and in accordance with this agreement and the Platform’s Community Guidelines. You must not use the Platform:
(a) In any way that violates any applicable federal, state, national, provincial, local, or international law or regulation (including any laws regarding the export of data or software to and from the US or other countries).
(b) To send, knowingly receive, upload, download, use, or re-use any material which does not comply with the Content Standards stated in this agreement.
(c) To transmit, or procure the sending of, any advertising or promotional material without the Company’s prior written consent, including any “junk mail”, “chain letter,” or “spam” or any other similar solicitation.
(d) To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including by using email addresses or screen names associated with any of the foregoing).
(e) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by the Company, may harm the Company or users of the Platform or expose them to liability.
4.2 Additionally, you must not:
(a) Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform, including their ability to engage in real-time activities through the Platform.
(b) Use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the Materials on the Platform.
(c) Use any manual process to monitor or copy any of the Materials on the Platform or for any other unauthorized purpose without the Company’s prior written consent.
(d) Use any device, software, or routine that interferes with the proper working of the Platform.
(e) Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.
(f) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer, or database connected to the Platform.
(g) Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
(h) Otherwise attempt to interfere with the proper working of the Platform.
5. User Contributions
5.1 In General. The Platform allows users to distribute streaming live and pre-recorded audiovisual works; to use services, such as chat and interactive services; and to participate in other activities and interactive features (collectively, “Interactive Services”) in which you may create, post, submit, publish, display, perform, transmit, or store content, messages, text, sound, images, applications, code, or other data or materials on the Platform (collectively, “User Contributions”). All User Contributions must comply with the Content Standards stated in section 9 and the Platform’s Community Guidelines. Any User Contribution you post to the Platform will be considered nonconfidential and nonproprietary.
5.2 License to the Company
(a) Unless otherwise agreed to in a written agreement between you and the Company, if you submit, transmit, display, perform post, or store User Contributions using the Platform, you hereby grant the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sublicensable, nonexclusive, and royalty-free license to (i) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display those User Contributions (including for promoting and redistributing all or part of the Platform (and derivative works of them)) in any form, format, media, or media channels now known or later developed or discovered; and (ii) use the name, identity, likeness, and voice (or other biographical information) that you submit in connection with those User Contributions. Should those User Contributions contain the name, identity, likeness, and voice (or other biographical information) of third parties, you state that you have obtained the appropriate consents and licenses for your use of those features and that the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns are allowed to use them to the extent indicated in this agreement.
(b) With respect to streaming live and pre-recorded audiovisual works, the rights granted by you under this agreement terminate once you delete those User Contributions from the Platform or generally by closing your account, except (i) if you shared it with others as part of the Platform and others copied or stored parts of the User Contributions (e.g., made a clip); (ii) the Company used it for promotional purposes; and (iii) for the reasonable time it takes to remove from backup and other systems.
5.3 User Contributions Representations and Warranties. You acknowledge that you are solely responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for that content, including its legality, reliability, accuracy, and appropriateness. The Company is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user. You state that the following facts are accurate: (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns; (b) your User Contributions do not and will not (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) defame any other person; (c) your User Contributions do not contain any viruses, adware, spyware, worms, or other harmful or malicious code; (d) unless you have received prior written authorization, your User Contributions specifically do not contain any confidential information of the Company or third parties; and (e) your User Contributions otherwise comply with the Content Standards stated in section 9 and the Platform’s Community Guidelines[A3] .
5.4 Content is Uploaded at Your Own Risk. The Company uses reasonable security measures to attempt to protect User Contributions against unauthorized copying and distribution. However, the Company does not guarantee that any unauthorized copying, use, or distribution of User Contributions by third parties will not take place. To the fullest extent permitted by applicable law, the Company will not be liable for any unauthorized copying, use, or distribution of User Contributions by third parties, and you release and forever waive any claims you may have against the Company for any such unauthorized copying or usage of the User Contributions, under any theory. The security measures to protect User Contributions used by the Company are provided and used “as is” and with no warranties, guarantees, conditions, assurances, or other terms that such security measures will withstand attempts to evade security mechanisms or that there will be no cracks, disablements, or other circumvention of those security measures.
6. Monitoring and Enforcement; Termination
6.1 The Company may:
(a) Remove or refuse to post any User Contributions for any or no reason in the Company’s sole discretion;
(b) Take any action with respect to any User Contribution that the Company considers necessary or appropriate in its sole discretion, including if the Company believes that that User Contribution violates this agreement, including the Content Standards stated in section 9, or the Platform’s Community Guidelines; infringes any intellectual-property right or other right of any person or entity; threatens the personal safety of users of the Platform or the public; or could create liability for the Company;
(c) Disclose your identity or other information about you to the extent required by law to any third party who claims that material posted by you violates their rights, including their intellectual-property rights or their right to privacy;
(d) Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Platform; or
(e) Terminate or suspend your access to all or part of the Platform for any reason, including any violation of this agreement.
6.2 The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or other information of anyone posting any materials on or through the Platform. You waive and hold harmless the Company and the Company’s affiliates, licensees, and service providers from any claims resulting from any action taken by any of the foregoing parties during, or taken as a consequence of, investigations by either those parties or law enforcement authorities.
6.3 The Company does not undertake to review material before it is posted on the Platform and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, the Company assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. The Company has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section 8.
7. Content Standards. These content standards apply to all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, national, provincial, local, and international laws and regulations. User Contributions must not:
7.1 Contain any material that is defamatory, libelous, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
7.2 Promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
7.3 Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
7.5 Be likely to deceive any person.
7.6 Depict private or personal information of any person.
7.7 Promote or solicit any illegal activity, or advocate, promote, or assist any unlawful act, including promoting or facilitating prostitution of another person, sex trafficking, or human trafficking.
7.8 Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
7.9 Impersonate any person or misrepresent your identity or affiliation with any person or organization.
7.10 Involve commercial activities or sales, including non-sanctioned contests, sweepstakes, and other sales promotions, barter, or advertising.
7.11 Give the impression that they emanate from or are endorsed by the Company or any other person, if this is not the case.
7.12 Contain viruses, worms, or Trojan horses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications.
8. Copyright Infringement. If you believe that any User Contribution violates your copyright, please see the Copyright Policy for instructions on sending the Company a notice of copyright infringement. It is the Company’s policy to terminate the user accounts of repeat infringers.
9. Third-Party Content
9.1 In addition to the User Contributions, the Company may provide other third-party content on the Platform (collectively, the “Third-Party Content”). The Company does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including regarding its accuracy or completeness. Please be aware that the Company does not create Third-Party Content, update, or monitor it. Therefore, the Company is not responsible for any Third-Party Content on the Platform.
9.2 You are responsible for deciding if you want to access or use third-party websites or applications that link from the Platform (“Reference Sites”). The Company does not control or endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites, and makes no representations or warranties of any kind regarding the Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Platform are solely between you and that advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
10. No Offsite Communications. You must not use the Platform to arrange face-to-face meetings offline with any other user or broadcaster, including exchanging money or other consideration for sex or companionship. The Company prohibits any form of interaction with a user or broadcaster outside of the Platform. If you choose to do so, you do this at your own risk and the Company will not be liable to you for any consequences of your choice.
11. Changes to the Platform. The Company may update the Platform’s content from time to time, but its content is not necessarily complete or up to date. Any of the Platform’s material may be out of date at any given time, and the Company is not required to update that material.
13. Use Outside of the United States. The owner of the Platform is based in the United States. The Company makes no claims that the Platform or any of its content is accessible or appropriate outside of the United States. Access to the Platform may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you do so on your own initiative and are responsible for complying with local laws.
14. Warranty Disclaimers
14.1 You acknowledge that the Company cannot and does not state that files available for downloading from the Internet or the Platform will be free from loss, corruption, attack, viruses or other destructive code, interference, hacking, or other security intrusions. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping a means external to the Platform for any reconstruction of any lost data. The Company will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that might infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Platform or any services or items obtained through the Platform or to your downloading of any material posted on the Platform, or on any website linked to it.
14.2 Your use of the Platform, its content, and any services or items obtained through the Platform is at your own risk. The Company provides the Platform, its content, and any services or items obtained through the Platform “as is,” “with all faults,” and “as available,” without making any warranty, either express or implied. The Company is not making any warranty (1) that the Platform, its content, or any services or items obtained through the Platform are or will be accurate, reliable, error-free, or uninterrupted; (2) that defects will be corrected; (3) that the Platform or the server that makes it available are free of viruses or other harmful components; or (4) that the Platform or any services or items obtained through the Platform will otherwise meet your needs or expectations.
14.3 The Company is not making any warranty, whether express, implied, statutory, or otherwise, including warranty of merchantability, title, noninfringement, privacy, security, and fitness for a particular purpose. No advice or information, whether oral or written, obtained from the Company, the Platform, or elsewhere will create any warranty not expressly stated in this agreement.
15. Limit on Liability; Release
15.1 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any of the following:
(a) Errors, mistakes, or inaccuracies of content;
(b) Personal injury or property damage resulting from your access to and use of the Platform or its content;
(c) Content (including User Contributions) or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
(d) Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to your account, submissions, transmissions, or data;
(e) Interruption or cessation of transmission to or from the Platform;
(f) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Platform by any person or that might infect your computer or affect your access to or use of the Platform, your other services, hardware, or software;
(g) Incompatibility between the Platform and your other services, hardware, or software;
(h) Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Platform; or
(i) Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Platform.
15.2 You hereby release the Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers from all liability arising out of User Contributions or the conduct of other users or third parties, including disputes between you and one or more other users or third parties.
16. Exclusion of Damages; Exclusive Remedy
16.1 Unless caused by gross negligence or intentional misconduct, the Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any direct, indirect, special (including so-called consequential damages), statutory, punitive, or exemplary damages arising out of or relating to your access or your inability to access the Platform or its content. This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
16.2 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers will not be liable to you for any damages for (1) personal injury, (2) pain and suffering, (3) emotional distress, (4) loss of revenue, (5) loss of profits, (6) loss of business or anticipated savings, (7) loss of use, (8) loss of goodwill, (9) loss of data, (10) loss of privacy, or (11) computer failure related to your access of or your inability to access the Platform or its content. This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
16.3 If you are dissatisfied with the Platform or have any other complaint, your exclusive remedy is to stop using the Platform. The maximum liability of the Company and its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers to you for any claim will not exceed the greater of $250 and the amount you have paid to the Company for the applicable purchase out of which liability arose even if the remedy fails of its essential purpose.
17. Waiver of Section 1542. With respect to the releases of liability set out in this agreement, you acknowledge that you understand the consequences of entering into the general release and discharge of all known and unknown claims as stated in this agreement and that you are familiar with the provisions of section 1542 of the California Civil Code, which provides that:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
You hereby waive all rights under section 1542 and under any other federal or state statutes or laws of similar effect.
18. Scope of Disclaimers, Exclusions, and Limits. The disclaimers, exclusions, and limits stated in sections 18, 19, and 20 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the exclusion of some damages, or other matters, one or more of the disclaimers, exclusions, or limits will not apply to you.
19.1 In General. You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, licensors, content providers, and service providers (the “Indemnified Parties”) for any loss of the Indemnified Parties’ that is caused by any of the following: (a) your access of, or conduct on, the Platform, including your User Contributions; (b) your conduct off the Platform; (c) your breach of this agreement or the Platform’s Community Guidelines[A5] ; (d) your violation of rights of any person, including intellectual property, publicity, and privacy rights; (e) your violation of any applicable law; (f) your tortious acts or omissions; or (g) your criminal acts or omissions. But you are not required to pay if the loss was caused by the Indemnified Party’s intentional misconduct.
(a) “Loss” means an amount that the Indemnified Party is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
19.3 Indemnified Party’s Duty to Notify You. The Indemnified Party will notify you before the 30th day after the Indemnified Party knows or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Indemnified Party’s failure to timely notify you does not end your obligation, except if that failure prejudices your ability to defend or mitigate losses.
19.4 Legal Defense of a Claim. The Indemnified Party has control over defending a claim for a loss (including settling it) unless the Indemnified Party directs you to control the defense. If the Indemnified Party directs you to control the defense, you will not settle any litigation without the Indemnified Party’s written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Party, (2) admits the Indemnified Party’s fault, or (3) does not fully release the Indemnified Party from liability. You and the Indemnified Party will cooperate with each other in good faith on a claim.
19.5 No Exclusivity. The Indemnified Parties’ rights under this section 23 do not affect other rights they might have.
20. Dispute Resolution
20.1 Governing Law. United States District Court law, without giving effect to any conflicts of law principles, governs all matters arising out of or relating to the Platform or this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
20.2 Jurisdiction and Venue. All disputes arising out of or relating to the Platform or this agreement that are not subject to arbitration will be subject to the exclusive jurisdiction and venue of the United States District Court or any state court of competent jurisdiction in the United States, and each party hereby submits to the personal jurisdiction of those courts. Each party hereby waives any right to seek another forum or venue because of improper or inconvenient forum.
20.3 Arbitration. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of or relating to the Platform or this agreement, a party may demand that any such dispute be resolved by binding arbitration administered by the Arbitration Resolution Services, Inc. (ARS) (or a similar online dispute resolution provider if ARS is not available) in accordance with its rules available at www.arbresolutions.com, and each party hereby consents to any such dispute being so resolved. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable. Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will include costs of arbitration, reasonable legal fees under section 24.5, and reasonable costs for expert and other witnesses. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
20.4 Injunctive Relief. The parties acknowledge that breach by either party of the obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. Nothing in this section 24 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Platform, in each case without posting a bond or other security and without proof of actual money damages in connection with the claim.
20.5 Recovery of Expenses. In any proceedings between the parties arising out of or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 24.5, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
20.6 Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
20.7 Class Action Waiver. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.
20.8 Limitation on Time to Bring Claims. A party will not bring a claim arising out of or relating to the Platform or this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
21.1 Entire Agreement. This agreement and the Platform’s Community Guidelines constitutes the entire agreement between you and the Company about your access to and use of the Platform and supersedes all earlier or contemporaneous agreements between you and the Company about access to and use of the Platform. Any additional terms on the Platform will govern the items to which they pertain.
21.2 Changes. The Company may change this agreement on one or more occasions. The Company will try to post changes on the Platform at least 15 days before they become effective. Changes will become effective on the “last updated” date stated at the top of this agreement. Changes will not apply to continuing disputes or to disputes arising out of (or relating to) events happening before the posted changes. While the Company will try to notify you when the Company changes this agreement, the Company does not assume an obligation to do so, and it is your responsibility to frequently check this page to review the most current agreement. By continuing to use the Platform after the Company posts changes to this agreement, you agree to the revised agreement. If you do not agree to the revised agreement, your exclusive remedy is to stop accessing the Platform. If you need more information about the changes or have any other questions or comments about the changes, please contact the Company at firstname.lastname@example.org.
21.3 Assignment and Delegation. The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section 25.3 is void.
21.4 Waiver. If the Company fails to exercise or enforce any right or provision of this agreement, it will not constitute a waiver of that right or provision. Any waiver of any provision of this agreement will be effective only if in writing and signed by the relevant party.
21.5 Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
(a) Sending Notice to the Company. You may send notice to the Company by email to email@example.com unless a specific email address is set out for giving notice. The Company will consider an email notice received by the Company only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Platform. Please check the Platform for the most current information for sending notice to the Company.
(b) Sending Notice to You—Electronic Notice. You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you or (2) by posting the notice on a place on the Platform chosen for this purpose. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. You state that any email address you gave the Company for contacting you is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet and to print any email you receive.
21.7 Force Majeure. The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including (a) acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters; (b) war, riot, arson, embargoes, acts of civil or military authority, or terrorism; (c) fiber cuts; (d) strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials; (e) failure of the telecommunications or information services infrastructure; and (f) hacking, SPAM, or any failure of a computer, server, network, or software.
21.8 No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
21.9 Successors and Assigns. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
21.10 Electronic Communications Not Private. The Company does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to the Company or from the Company as open communications readily accessible to the public. You should not use the Platform to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Platform may read all messages you send to the Platform regardless of whether they are intended recipients.
21.11 Electronic Signatures. Any affirmation, assent, or agreement you send through the Platform will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your mouse, keystroke, or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
21.12 Consumer Rights Information—California Residents Only. This section 25.12 applies only to California residents. In compliance with section 1789 of the California Civil Code, please note the following:
9515 Hillwood Drive
Las Vegas, Nevada 89134
Users who wish to gain access to the password-restricted area of the Platform must register. The Company does not charge consumers for registering. You may contact the Company at firstname.lastname@example.org to resolve any disputes or to receive further information about the Platform.