THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SPONSOR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i)ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii)ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SPONSOR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE SPONSOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS TERMS OF USE. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND THE SPONSOR ENTITIES, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY (INCLUDING YOUR PERSONAL PROPERTY USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10.
.
IN NO EVENT WILL THE SPONSOR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SPONSOR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SPONSOR ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS TERMS OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i)THE AMOUNTS YOU HAVE PAID TO SPONSOR FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE MONTHS PRIOR TO THE CLAIM OR (ii)$100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS TERMS OF USE BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.
Governing law.
This Terms of Use is governed by the laws of the State of South Carolina without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Sponsor agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the state of South Carolina for the purpose of litigating all such disputes. Sponsor operates the Service from its offices in South Carolina and it makes no representation that Materials included in the Service are appropriate or available for use in other locations.
12.
General.
This Terms of Use, together with the Privacy Policy and any other agreements expressly incorporated by reference, constitute the entire and exclusive understanding and agreement between you and Sponsor regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to this Terms of Use. You may not assign or transfer this Terms of Use or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. Sponsor may assign this Terms of Use at any time without notice. The failure to require performance of any provision will not affect Sponsor’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Terms of Use or any provision of this Terms of Use constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Terms of Use is for convenience only and will not have any impact on the interpretation of particular provisions. If any part of this Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Terms of Use, any provision that by its nature or express terms should survive will survive such termination or expiration.
13.
Dispute resolution and arbitration.
13.1
Generally.
In the interest of resolving disputes between you and Sponsor in the most expedient and cost effective manner, you and Sponsor agree that any and all disputes arising in connection with this Terms of Use and your use of, and access to, the Service will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Terms of Use, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TERMS OF USE, YOU AND SPONSOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.2
Exceptions.
Notwithstanding Section13.1, we both agree that nothing in this Terms of Use will be deemed to waive, preclude, or otherwise limit either of our right to: (i)bring an individual action in small claims court; (ii)pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii)seek injunctive relief in a court of law; or (iv)to file suit in a court of law to address intellectual property infringement claims.
13.3
Arbitrator.
Any arbitration between you and Sponsor will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “
AAA Rules”) of the American Arbitration Association (“
AAA”), as modified by this Terms of Use, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org by calling the AAA at 1-800-778-7879, or by contacting Sponsor.
13.4
Notice; process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by submitting a form here:
TOS Contact. The Notice must: (i)describe the nature and basis of the claim or dispute; and (ii)set forth the specific relief sought (“
Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Sponsor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Sponsor must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Sponsor will pay you: (a)the amount awarded by the arbitrator, if any; (b)the last written settlement amount offered by Sponsor in settlement of the dispute prior to the arbitrator’s award; or (c)$1,000, whichever is greater.
13.5
Fees.
If you commence arbitration in accordance with this Terms of Use, Sponsor will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in South Carolina, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i)solely on the basis of documents submitted to the arbitrator; (ii)through a non-appearance based telephonic hearing; or (iii)by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Sponsor for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. In the event of a dispute, and unless otherwise prohibited by law or expressly noted herein, each party will bear their own attorney’s fees and other costs.
13.6
No class actions.
YOU AND SPONSOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Sponsor agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
13.7
Modifications.
If Sponsor makes any future change to this arbitration provision (other than a change to Sponsor’s address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to Sponsor’s address for Notice, in which case your account with Sponsor will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
13.8
Enforceability.
If Section13.6 is found to be unenforceable or if the entirety of this Section13 is found to be unenforceable, then the entirety of this Section13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section11 will govern any action arising out of or related to this Terms of Use.
14.
Consent to electronic communications.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that Sponsor sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
15.
Contact information.
The services hereunder are offered by Sponsor. You may contact us by submitting a form here:
TOS Contact.