IMPORTANT LEGAL NOTICE.
YOU MUST BE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE TO AGREE TO THESE TERMS. IF YOU ARE UNDER THE AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST READ AND ACCEPT THIS AGREEMENT.
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- Proprietary Rights of COMPANY Content. The Services and COMPANY content provided through the Services, including but not limited to, the text, data, software, web pages, graphics, visual effects, animations, stamps, photographs, music, sounds, videos, interactive features, blogs, posts, feedback, messages, tags and other materials (collectively, "COMPANY Content") and the trademarks, service marks and logos contained therein ("Marks") are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All COMPANY Content is provided to you solely for your information and personal, non-commercial use. You agree to not engage in the use, copying, or distribution of any COMPANY Content other than as expressly permitted herein. If you download or print a copy of the COMPANY Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any COMPANY Content or enforce limitations on the use of the Services or COMPANY Content. We or our licensors retain all intellectual and proprietary rights in and to the Services and COMPANY Content, except as expressly provided herein. No right is granted to you herein to use any Marks. COMPANY grants you a limited, non-exclusive license to access and use the Services for your own personal, non-commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else.
- Your Additional Representations and Warranties. You further represent and warrant to us as follows:
- Your Account information, if applicable, is current, complete and accurate and you will promptly update all information to keep your Account and billing information complete and accurate upon any change (such as change of billing address, credit card number or expiration date);
- You have not and will not access or use the Services from any place or jurisdiction where such use is prohibited or contrary to applicable laws, rules, regulations, ordinances, edicts or customs, and you are not a national or resident of any country which the United States has (i) embargoed goods; (ii) identified as a "Specially Designated National"; or (iii) placed on the Commerce Department's Table of Deny Orders;
- Your use of the Services is and will be in compliance with all applicable laws, rules, regulations, ordinances, edicts or customs;
- You will not use any robot, spider, scraper or other automated measures to (i) access or use the Services, (ii) circumvent any technical measures we use to provide the Services, or (iii) cause harm to us or our affiliated entities.
- Noncommercial Use. The Services are made available for your personal, noncommercial use. You will not advertise or solicit any third party to buy or sell any products or services through the Services.
- Your rights under these Terms will immediately terminate if you do not comply with any of these Terms. Upon termination of these Terms, you must immediately cease using the Services and will not be entitled to any refund. All decisions regarding the termination shall be made by us in our sole discretion.
- Upon termination of these Terms for any reason, those provisions which, by their nature survive termination shall survive termination in accordance with their respective terms.
- DMCA Notice. We strive to comply with the Digital Millennium Copyright Act of 1998, as amended ("DMCA"), at all times and maintain a repeat offender policy which may result in the termination of your right to use Services if you violate such policy. If you believe that your work has been copied, posted or otherwise made available through the Services in a way that constitutes copyright infringement, please notify our DMCA Copyright Agent of your complaint, as set forth in the DMCA. Please consult the DMCA to confirm these requirements. You must provide our DMCA Copyright Agent with the following information in writing, to the extent required by the DMCA: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright owner that is allegedly infringed; (b) a description of the copyrighted work that you claim has been infringed (or, if multiple copyrighted works on a site are covered by a single complaint, a representative list of the allegedly infringing works on the site); (c) identification of the material that is claimed to be infringing and to be removed, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice and complaint is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Please be aware that the foregoing information in your complaint may be forwarded to the person who provided the allegedly infringing content. The foregoing information must be submitted to Subsidiary's DMCA Copyright Agent as follows:
Attn. Copyright Agent
113 Cherry Street
Seattle WA, 98104
Pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
If you believe that your material has been mistakenly removed or disabled pursuant to this Section, you may submit a counter notice by notifying our DMCA Copyright Agent at the address provided above.
Pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
- Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF YOUR USE, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY TO YOU FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, DURING THE 90 DAY PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Indemnification. You agree to pay the costs of defense, indemnify and hold us, our parent, subsidiaries, and affiliated entities, and ours and their shareholders, directors, officers, employees, agents, contractors, licensors and licensees, harmless from any loss, liability, claim, demand or expense, including but not limited to, reasonable attorney's fees, made by any third party due to or arising out of your use of the Services or any breach or violation of these Terms.
- U.S. Export Controls. Content provided through the Services is subject to United States export controls. No Content or Services may be exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- Choice of Law. These Terms shall be governed by the laws of the State of California, without regard to its conflict of laws rules or principles.
- Jurisdiction and Venue. You agree to exclusive jurisdiction in California and venue in San Francisco, California for all arbitration and other proceedings arising out of these Terms or the relationship of the parties.
- Arbitration of Disputes.
- ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND US OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO YOUR USE OF OUR SERVICES, YOUR ACCOUNT, THESE TERMS, THEIR INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF (INCLUDING THE SCOPE AND VALIDITY OF THIS ARBITRATION AGREEMENT), OR THE RELATIONSHIPS WHICH RESULT FROM THESE TERMS (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL ARBITRATION.
- Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username (if any), email address or phone number you use for your account (if any), a detailed description of the dispute, and the relief you seek. Any Notice of Dispute you send to us should be sent by mail to Analogue, 113 Cherry Street, Suite 99071, Seattle, WA 98104, USA. Before we commence arbitration, we will send you a Notice of Dispute that includes a detailed description of the dispute, and the relief we are seeking to the email address you use with your account, or other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.
- The arbitration shall be administered by JAMS pursuant to the then in-effect JAMS Streamlined Arbitration Rules & Procedures and Consumer Arbitration Minimum Standards (collectively, the "JAMS Rules") before a retired judge in San Francisco, California or as otherwise required by the JAMS Rules. Any party or third party or their counsel may appear telephonically in any hearings the same as if they were appearing in person, unless otherwise ordered by the arbitrator. In the event such a JAMS proceeding is unavailable for any reason, such disputes shall be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), and will be administered by the AAA before a single retired judge.
- The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. Other than initial filing fees as determined by JAMS or the AAA, all other applicable JAMS or AAA administrative costs of the arbitration shall be borne equally by the parties.
- This Section and Section 17 below are subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties, and it may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between you and us. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM.
- Nothing in this Section shall be deemed to prohibit either party from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve ours or our licensors' rights in and to intellectual property or confidential information.
- If there is a final judicial determination that any particular claim cannot be arbitrated in accordance with this provision, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision.
- Class Action Waiver. IN ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS, NEITHER YOU NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER AFFILIATES OR PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
- Electronic Communications. By using the Services, you consent to receiving electronic communications, e.g., email, from us or our subsidiaries and affiliated entities. These communications will include notices about your Account, where applicable, and information concerning or related to the Services. These communications are part of your relationship with us. You agree that any notice, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including but not limited to, any requirements that such communications be in writing.
- Severability. If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
- Merger; Translations. These Terms represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. Where we have provided you with a translation of the English language version of these Terms, then you agree that the translation is provided for your convenience only and that the English language versions of these Terms will govern your relationship with us. If there is any contradiction between what the English language version of these Terms and any translation, the English language version shall take precedence.
- Force Majeure. Neither you nor we shall be held responsible for any delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party's reasonable control.
- Construction The headings used herein are for convenience only and shall not be deemed to define, limit or construe the content of any provision of these Terms. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
- Notices Except as explicitly stated otherwise, legal and other notices (including but not limited to notices of legal proceedings) shall be delivered to Analogue, 113 Cherry Street, Suite 99071, Seattle WA, 98104, USA, or to you at the email address you provided us (a) at the time you registered; (b) through a subsequent notice of an address change; or (c) through a posting through the Services, where applicable. Physical notices shall be effective when received. Email notices allowed hereunder shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. In addition, we may provide notice by certified mail, postage prepaid and return receipt requested. In such case, notice shall be deemed given when received.
- Waiver Failure to enforce any provision of these Terms shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of us at our director level or above. You acknowledge that if you request a refund or credit from us, our decision to provide this refund or credit shall not act as a release. We are not waiving our rights to seek redress or recovery for the refund or credit issued along with any other rights of recovery or damages available to us regarding your use of the Services and your request for a credit or refund.
- Limitations of Claims. You agree that any claim or cause of action arising out of or related to these Terms or your use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Non-Assignment. You may not resell, assign or transfer any of your rights or obligations under these Terms without our prior written consent. We may resell, assign or transfer our rights and obligations under these Terms at any time without restriction and without notice or consent.
- Agreement Binding. This Agreement shall be binding upon the parties and their successors and permitted assigns.