We may offer from time to time via Our website and/or apps (the website, apps, products and services, collectively, the “Services”) are subject to these Terms and Conditions (this “Agreement”). “You” and “Your” refer to the individual who visits or uses the Services.
BY YOUR USE OF THE SERVICES, YOU AGREE TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, INCLUDING (BUT NOT LIMITED TO) THE JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND ARBITRATION CLAUSE CONTAINED HEREIN.
MODIFICATION OF AGREEMENT. We reserve the right, at any time and without notice, to add to, change, update, or modify this Agreement simply by posting such addition, change, update, or modification on the Services. Any such change, update, or modification will be effective immediately upon posting on the Services. We suggest that You check this Agreement periodically for changes.
AGREEMENT TO RECEIVE MARKETING CALLS FROM US. You understand and agree that, by providing Your telephone number to Us, You agree to receive marketing calls from Us.
LICENSE FOR PERSONAL USE ONLY. The Services may from time to time contain, describe, reference, or otherwise make available content, information, data, software, products, and other materials (collectively, “Materials”) We have compiled from internal and external sources for the purpose of providing information about Us, Our partners, and Our and their products and services, including, but not limited to, the Enmarket arena (the “Arena”), to customers and other permitted users. You are hereby granted a personal, non-exclusive, revocable, non-transferable license to use the Services and to view and use the Materials, solely for your personal and non-commercial purposes.
RESTRICTIONS OF USE. You agree that You shall not: (a) copy, reproduce, modify, use, republish, upload, post, transmit, sell, resell, license, rent, lease, lend, otherwise distribute or commercially exploit in any way, decompile, reverse engineer, disassemble, otherwise attempt to derive source code from, or modify or create derivative works based on, the Services or any Materials obtained from or through the Services; (b) “frame” or use the Services or any Materials in any way that might confuse, misdirect, or misrepresent their source, or sponsorship or affiliation thereof or therewith; (c) use any robot, spider or other automatic device, manual process or application or data mining or extraction tool to access, monitor, copy or use the Services or any Materials; (d) take any other action that imposes an unreasonable or disproportionately large load on the Services; (e) take any action in connection with Your use of Services or Materials which violates any applicable local, state, national or international law, rule, regulation or order of any court in conjunction with Your use thereof; or (f) otherwise use the Services for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property rights (whether belonging to Us or third parties) and the posting or distribution of any “harmful” or “malicious” code or programming devices (e.g., viruses, malware, ransomware, corrupted files, key locks, back doors, trap doors, timers or other disabling devices) or any other similar software or programs that may adversely affect the operation of the Services or any other software, hardware, network or other technology (collectively, “Malicious Code”).
PROPRIETARY RIGHTS. All Services and Materials, any improvements or modifications to such Services and Materials, any derivative works based thereon, and the collection, arrangement, and assembly of all such Services Materials, are, except as otherwise expressly stated herein, owned exclusively by Us or Our licensors, and We (and Our licensors) reserve all rights therein. The contents of the Services and Materials are protected by the United States and worldwide copyright and intellectual property laws and treaty provisions. The trademarks, service marks, trade names, logos, and other identifiers used in or in connection with the Services and Materials are the proprietary service marks or trademarks of Us, Our partners, or third parties, and are protected in the United States and internationally. No copying, modification, or use of any of these marks or identifiers may be made without the prior, written authorization of Us or Our licensors (as applicable). Except as expressly set forth above, nothing in this Agreement shall be deemed to grant to You or any other individual or entity any license or right in or to any copyright, trademark, trade secret, or other proprietary rights, whether owned by Us, Our partners, or any other person.
DISCLAIMERS. THE SERVICES AND ALL MATERIALS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE; (b) ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY, RELIABILITY, OPERATION, USE, OR PERFORMANCE OF THE SERVICES OR THE MATERIALS; (c) ANY WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, THE MATERIALS, AND/OR THE SERVER(S) AND CONNECTIONS THAT MAKE THEM AVAILABLE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES OR OTHER MALICIOUS CODE; AND (d) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
IN ADDITION, WE CANNOT AND DO NOT REPRESENT, GUARANTEE OR WARRANT THAT THE MATERIALS ACCESSIBLE ON OR VIA THE SERVICES ARE ACCURATE, CORRECT, COMPLETE, RELIABLE, OR CURRENT, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN, OR ANY CONSEQUENCES RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION.
LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE, OUR PARTNERS, NOR ANY OF OUR OR THEIR THIRD PARTY PROVIDERS OR LICENSORS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, AND CONSEQUENTIAL DAMAGES, EVEN IF THE APPLICABLE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SERVICES, OR ANY MATERIALS, PAGES, OR CONTENT ACCESSIBLE VIA THE SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT, COMBINED WITH THAT OF OUR PARTNERS AND OUR AND THEIR THIRD PARTY PROVIDERS AND LICENSORS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS YOU PAID TO US UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO ANY LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
INDEMNIFICATION. To the extent permitted by applicable law, You agree to indemnify and hold Us, Our partners, and each of Our and their affiliates, licensors, members, officers, directors, managers, partners, employees, consultants, temporary resources, agents, suppliers, providers, contractors, subcontractors, successors, transferees, and assignees harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees, disbursements and court costs, including any incurred in the enforcement of this indemnification provision) arising from or in connection with (a) Your use of the Services, or any Materials, content, information, or services contained, displayed, available or accessible on or from the Services; (b) Your violation of this Agreement; and/or (c) Your violation of any rights of any third party.
THIRD-PARTY LINKS. The Services may provide links or references to third-party websites, mobile applications, services, or materials which are not provided by, related to, or maintained by Us. We have no responsibility for the content thereof, regardless of whether the link is provided by Us or a third party, and We shall not be responsible or liable for any damages or injury arising from Your access to or use of that content. You should review any terms and conditions of use and Privacy Policies or Statements (and similar documents) associated with such third-party websites, applications, services, or materials before use thereof. The display of any link shall not and does not constitute or imply endorsement by Us or Our partners of the linked website or any content therein. No judgment or warranty is made with respect to the accuracy, timeliness, or suitability of the content of any website to which the Services may link, including information on such other website regarding Us or Our partners.
MINORS. Children under 13 years of age are not permitted to use the Services. By using the Services, You represent that You are 18 years of age or older, or are 13 years of age or older and have valid parental consent to do so.
ASSIGNMENT. You may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, and any such assignment in violation of this Agreement shall be null and void. Any failure by Us to exercise or enforce any right or provision set forth herein shall not constitute a waiver of such right or provision. This Agreement sets forth the entire understanding between You and Us with respect to the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written, between You and Us with respect to such subject matter.
GOVERNING LAW. You understand and agree that this Agreement is governed by the laws of the State of Georgia, except that the Jury Trial Waiver, Class Action Waiver and Arbitration Clause is governed by the Federal Arbitration Act.
EMERGENCY RELIEF. You acknowledge and agree that (a) the terms contained in this Agreement are reasonable and necessary, and (b) Your actual or threatened breach of this Agreement would give rise to irreparable harm to Us for which monetary damages would not constitute an adequate remedy and, in addition to any and all other rights that may be available (including, but not limited to, arbitration pursuant to the Jury Trial Waiver, Class Action Waiver and Arbitration Clause below) in respect of such breach or threatened breach, will entitle Us to immediate injunctive and other equitable relief without any requirement to prove monetary damages or to post a bond or other security.
MODIFICATIONS AND DISCONTINUANCE OF SERVICES AND MATERIALS. We reserve the right to make changes to the information, data, and Materials provided in connection with the Services, and to modify or discontinue some or all of the Services, in each case at any time with or without prior notice. We reserve the right to refuse service and/or prohibit or terminate access to the Services, in whole or in part, for any or no reason, at any time in Our sole discretion, with or without notice to You. We shall in no way be held liable for any consequence which results from Our decision to modify or discontinue providing the Services or any functionality thereof or Materials therein.
YOUR LOCATION. You represent and warrant that (a) You are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) You are not listed on any U.S. Government list of prohibited or restricted parties.
MONITORING. We expressly reserve the right to monitor any and all use of the Services and Materials. We also reserve the right to investigate and take legal action against any against any illegal and/or unauthorized use of the Services and/or Materials. Our decision not to pursue legal action for any violation of this Agreement shall not be construed as a waiver of any provision of this Agreement or any of Our legal rights.
Jury Trial Waiver, Class Action Waiver and Arbitration Clause
You understand and agree to the following Jury Trial Waiver, Class Action Waiver, and Arbitration Clause (the “Clause”):
Background and Scope
WHAT IS ARBITRATION? An alternative to court. In arbitration, a third party (“Arbiter”) solves Disputes in a hearing (“hearing”). You, related third parties, and We, waive the right to go to court. You and We waive jury trials.
IS IT DIFFERENT FROM COURT AND JURY TRIALS? Yes. The hearing is private and less formal than court. Arbiters may limit pre-hearing fact-finding, called “discovery.” The decision is final. Courts rarely overturn Arbiters.
WHO DOES THE CLAUSE COVER? You, Us, and Others. This Clause governs the You; Us; Your and Our respective affiliates, related parties, heirs, successors, assigns; and third parties related to or involved with any Dispute.
WHICH DISPUTES ARE COVERED? All Disputes. In this Clause, the word “Disputes” has the broadest possible meaning. This Clause governs all “Disputes” involving You, Us and the persons and entities described above. This includes all claims even indirectly related to this Agreement, Your use of our website, and any other agreements You have with Us. This includes claims related to information You previously gave us. It includes claims related to setting aside this Clause. It includes claims about this Clause’s validity and scope. It includes claims about whether to arbitrate.
Are You Waiving Your Rights?
Yes. You waive Your rights to:
- Have juries solve Disputes.
- Have courts, other than small-claims courts, solve Disputes.
- Serve as a private attorney general or in a representative capacity.
- Be in a class action.
ARE YOU WAIVING CLASS ACTION RIGHTS? Yes. COURTS AND ARBITERS WON’T ALLOW CLASS ACTIONS. You waive Your rights to be in a class action, as a representative and a member. Only individual arbitration, or small-claims courts, will solve Disputes. You waive Your right to have representative claims. Unless reversed on appeal, if a court invalidates this waiver, the Clause will be void.
What Law Applies?
The Federal Arbitration Act (FAA). The use of Our Services involves interstate commerce, so the FAA governs. If a court finds the FAA doesn’t apply, and the finding can’t be appealed, then law of the State of Georgia governs. The Arbiter must apply substantive law consistent with the FAA. The Arbiter must follow statutes of limitation and privilege claims.
CAN THE PARTIES TRY TO SOLVE DISPUTES FIRST? Yes. We can try to solve Disputes if You call us at 1-310-954-4800. If this doesn’t solve the Dispute, mail us notice, within 100 days of the Dispute date. In Your notice, tell us the details and how You want to solve it. We will try to solve the Dispute. If We make a written offer (“Settlement Offer”), You can reject it and arbitrate. If We don’t solve the Dispute, either You or We may start arbitration. To start arbitration, contact an Arbiter or arbitration group listed below. No party will disclose settlement proposals to the Arbiter during arbitration.
Can Small-Claims Court Solve Some Disputes?
Yes. Each of You and We have the right to arbitrate, or to go to small-claims court if the small-claims court has the power to hear the Dispute. Arbitration will solve all Disputes that the small-claims court does not have the power to hear. If there is an appeal from small-claims court, or if a Dispute changes so that the small-claims court loses the power to hear it, then the Dispute will only be heard by an Arbiter.
DO OTHER OPTIONS EXIST? Yes. Both You and We may use lawful self-help remedies. Both You and We may seek remedies which don’t claim money damages (including, but not limited to, injunctions and temporary restraining orders and other forms of equitable relief).
WILL THIS CLAUSE CONTINUE TO GOVERN? Yes, unless otherwise agreed. The Clause stays effective, both You and We sign an agreement stating it doesn’t. The Clause governs if You rescind the transaction. It governs if Your contract is discharged through bankruptcy. The Clause remains effective, despite a transaction’s termination, amendment, expiration, or performance.
HOW DOES ARBITRATION START? Mailing a notice. Either You or We may mail the other a request to arbitrate, even if a lawsuit has been filed. The notice should describe the Dispute and relief sought. The receiving party must mail a response within 20 days. If You mail the demand, You may choose the arbitration group, or Your demand may state that You want the parties to choose a local Arbiter. If related third parties or We mail the demand, You must respond in 20 days. Your response must choose an arbitration group or propose a local Arbiter. If it doesn’t, We may choose the group.
WHO ARBITRATES? AAA, JAMS, or an agreed Arbiter. You may select the American Arbitration Association (“AAA”) (1-800-778-7879) adr.org or JAMS (1-800-352-5267) jamsadr.com. You and We may also agree in writing to a local attorney, retired judge, or Arbiter in good standing with an arbitration group. The Arbiter must arbitrate under AAA or JAMS consumer rules. You may get a copy of these rules from such group. Any rules that conflict with any of our agreements with You, don’t apply. If these options aren’t available, and You and We can’t agree on another, a court may choose the Arbiter. Such Arbiter must enforce Your agreements with Us as they are written.
WILL THE HEARING BE HELD NEARBY? Yes. The Arbiter will order the hearing within 30 miles of the Arena.
WHAT ABOUT APPEALS? Appeals are limited. The Arbiter’s decision will be final. A party may file the Arbiter’s award with the proper court. Arbitration will solve appeals of a small-claims court judgment, and You or We may appeal under the FAA. If the amount in controversy exceeds $ 10,000.00, You or We may appeal the Arbiter’s finding. Such appeal will be to a three-Arbiter panel from the same arbitration group. The appeal will be de novo, and solved by majority vote. The appealing party bears appeal costs, despite the outcome.
Arbitration Fees and Awards
WILL WE ADVANCE ARBITRATION FEES? Yes, but You pay Your costs. We will advance your “Arbitration Fees” if You ask us to. This includes filing, administrative, hearing, and Arbiter’s fees. You pay Your attorney fees and other expenses.
ARE DAMAGES AND ATTORNEY FEES POSSIBLE? Yes, if allowed by law. The Arbiter may award the same damages as a court. Arbiters may award reasonable attorney fees, and expenses, if allowed by law.
WILL YOU PAY ARBITRATION FEES IF YOU WIN? No. If the Arbiter awards You funds, You don’t reimburse us the Arbitration Fees.
WILL YOU EVER PAY ARBITRATION FEES? Yes. If the Arbiter doesn’t award You funds, then You must repay the Arbitration Fees. If You must pay Arbitration Fees, the amount won’t exceed state court costs.
WHAT HAPPENS IF YOU WIN? You could get more than the Arbiter awarded. If an Arbiter’s award to You exceeds our last Settlement Offer, we will pay 3 amounts. We will pay the award, plus 10% of such amount (“bonus payment”). We will pay Your attorney the attorney fees conferred, plus 10% of such amount (“attorney premium”). If the Arbiter orders, We will pay reasonable expert witness costs and other costs You incurred (“cost premium”). If We never made a Settlement Offer, We will pay the bonus payment, attorney premium, and any cost premium. If a law allows You more, this Clause won’t prevent such award. We won’t seek attorney fees and expenses.
CAN AN AWARD BE EXPLAINED? Yes. You or We may request details from the Arbiter, within 14 days of the ruling. Upon such request, the Arbiter will explain the ruling in writing.