CALIFORNIA MEDICAL ASSOCIATION
ONLINE TERMS AND CONDITIONS OF USE
Effective: July 16, 2018
A. Welcome to the California Medical Association’s website. Through our www.cmadocs.org website (“Site”) we provide content, products, services, information, and resources (collectively, the “Services”). The Site is owned and operated by the California Medical Association (collectively, with its subsidiaries and affiliates, “CMA”, “we”, “us” or “our”). Throughout these Online Terms And Conditions Of Use, all references to the Site shall include the websites of affiliates and subsidiaries of CMA that are involved with the operation of the Site or the provision of the Services.
2. Changes to the Terms
A. We periodically update the Services. Because we are constantly trying to improve our Services, these Terms may also need to change. We reserve the right to change these Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Site, by sending you an email, or by some other means.
B. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use this Site or the Services. If you use the Site or the Services in any way after a change to these Terms is effective, that means you agree to all of the changes.
C. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed or otherwise consented to by both you and us.
D. Modifications to these Terms will be posted on the relevant area of the Site and will be effective immediately upon posting. You can review the most current version of these Terms at any time by clicking on the “Terms of Service” link located on webpages throughout the Site. You agree to review these Terms from time to time to ensure you are updated as to any modifications. By continuing to use the Site or the Services following any such modification, you accept and agree to be bound by such modifications. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES.
B. Use By Minors; Parental/Guardian Consent. The Site and the Services are intended for access and use by individuals over 18 years of age. Please note that we do not knowingly collect or solicit personally identifiable information from children under 13. If you are under 13, please do not attempt to register for the Site or the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us.
4. Registration; Account Use
B. You are responsible for maintaining the confidentiality of your login, password, and other account information, and you are fully responsible for all activities that occur under your account. You will be solely responsible for safeguarding your password and also for any actions under your password and account, whether authorized by you or not. If you lose control of your password, you may lose substantial control of your Personal Information and could potentially be subject to legally binding actions taken on your behalf. You further agree not to use anyone else’s password on the Site or attempt to gain access to the account of any other user. We may reject any user name that violates these Terms, including any user name that uses another person’s identity or that violates our Forum Guidelines.
C. You agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Site and the Services and CMA Content (as defined below) and not interfere with the use and enjoyment of the Site or the Services or CMA Content by other users or with our operation and management of the Site or the Services or CMA Content.
D. We may use the email and other contact information you provide to us as part of your Account Data to provide you with service messages and updates. By becoming a User you are consenting to the receipt of these communications.
E. WE CANNOT AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO COMPLY WITH THESE TERMS.
F. Refunds for membership dues are governed by our Refund Policy.
5. Our Services
B. Availability. We shall use commercially reasonable efforts to provide continuous access to the Site and our online Services. We do not guarantee that the Site or the online Services will be accessible at all times. The Site or the online Services may be unavailable during maintenance periods, an emergency, or due to unforeseen circumstances.
C. Force Majeure Events. We shall not be liable to you or any other person, firm, or entity for any failure of performance under these Terms if the Site or our Services is due to any cause beyond our reasonable control, including, but not limited to strikes, labor disputes, lockouts, or work stoppages, or other labor difficulties, shortages of labor or materials, riots, vandalism, civil disturbances, acts of terrorism, wars, third-party provider outages, cable cuts, power crisis shortages, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, inclement weather, fires, floods, storms, explosions, and other uncontrollable acts of God or nature, or other similar occurrences; any law, order, regulation, direction, action, or request of the United States or foreign government (including state and local governmental agency, department, commission, court, bureau, corporation, or other instrumentality of any one or more of said governments) or of any civil or military authority, or national emergencies.
D. We have the right to refuse to provide any of our Services to you. We have the right to cease offering a Service or access to any CMA Content at any time and in our sole discretion, with or without prior notice to you.
E. We may contract with third party service providers, such as, but not limited to, outside hosting and storage providers, which may be located (or have data stored or accesses) inside or outside the United States.
G. We reserve the right to deactivate any accounts which have not been active for at least six (6) months. We reserve the right to delete data in deactivated accounts.
6. Communications. As a visitor or User, you hereby consent to receive electronic communications (email, text/SMS, and by mobile phone) from us concerning our Service offerings (collectively, “Communications”). For Users, the Communications may be those that we are required to send to you by law concerning the Services (“Required Communications”). The Communications may also be those that we send to you for other reasons. We may provide these Communications to you by sending an email to the email address you provided in connection with your account, by text/SMS to or by calling the mobile phone number you provide, and/or by posting the Communications on the Site. You may change the email or mobile phone number on file for your account by visiting your account information page. You may opt out of receiving all Communications via email by sending a notice to us that identifies your full name, user name and email address. If you are a registered User and opt out, you will not receive any further electronic notices from us, which notices may include important notices or announcements, but, we will continue to mail you required or important notices.
7. Access to and Use of the Site. Subject to your compliance with these Terms, we grant you a personal, limited, terminable, nonexclusive, non-sublicensable, non-transferable right to access the Site and use the Services. We have the right, but not the obligation, to take any of the following actions without providing any prior notice to you: (a) change or terminate all or any part of the Site or the Services; (b) restrict or terminate your access to all or any part of the Site or the Services; or (c) refuse, move, or remove any content that is available on the Site and any material that you submit to the Site.
8. Discussion Forum; Guidelines. If you use our Discussion Forums portal, you agree to abide by our forum guidelines, which are posted here: https//www.cmadocs.org/forum-guidelines: (“Forum Guidelines”). These guidelines may be revised from time to time and will be effective when they are posted. Your logging in or use of the Discussion Forums is your agreement to abide by the Forum Guidelines.
10. Acceptable Use and Restrictions on Use. You shall not (and shall not allow any third party to): (a) engage in commercial use of the Site or any content on the Site; (b) reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use any portion of the content offered on the Site for other than your own personal, non-commercial use; (c) remove any copyright, trademark, or other proprietary rights notices contained in or on the Site or Services or in or on any content or other material obtained via the Site or the Services; (d) use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Site or the Services, including, but not limited to, for purposes of constructing or populating a searchable database; (e) collect or harvest any information about other users or members (including usernames and/or email addresses) for any purpose; (f) reformat or frame any portion of the web pages that are part of the Site or the Services; (g) create user accounts by automated means or under false, misleading, or fraudulent pretenses; (h) create or transmit unwanted electronic communications such as “spam” to other users or members of the Site or the Services or otherwise interfere with other users’ or members’ enjoyment of the Site or the Services; (i) transmit any viruses, worms, defects, Trojan horses, or other items of a destructive nature; (j) use the Site or the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (k) copy or modify the HTML code used to generate web pages on the Site; (l) use any device, software, or procedure that interferes with the proper working of the Site or the Services, or otherwise attempt to interfere with the proper working of the Site or the Services; (m) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure (e.g., DDOS attack); (n) modify, adapt, translate, or reverse engineer any portion of the Site or the Services; or (o) use the Site or the Services, intentionally or unintentionally, to violate any applicable international, national, federal, state, provincial, or local law or regulation.
11. User Content
A. Our Forums Community permits the submission of text, files, images, photos, videos, sounds, musical works, works of authorship and/or other materials and content by you (“User Content”). We do not endorse or approve any User Content that you or other Users contribute or post. We respect the intellectual property rights of others. You must have the legal right to upload any User Content. You are solely responsible for any content that you post.
B. You agree to not upload or post any User Content that infringes the copyright, trademark, or other intellectual property rights of a third party nor may you upload Content that violates any third party’s right of privacy or right of publicity. You may upload only Content that you are permitted to upload by the owner or by law.
C. All User Content uploaded to the Forums Community or other location on the Site is deemed nonconfidential.
12. Content License From You
A. You retain copyright and any other rights you already hold in User Content which you submit, post, or display on or through, the Services. By submitting, posting, or displaying the content you give us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute any User Content which you submit, post, or display on or through, the Services. This license is for the sole purpose of enabling us to display, distribute, and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
B. You agree that this license includes a right for us to make such User Content available to other companies, organizations, or individuals with whom we have relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
C. You understand that we, in performing the required technical steps to provide the Services to our users, may: (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to your User Content as are necessary to conform and adapt that User Content to the technical requirements of connecting networks, devices, services, or media. You agree that this license shall permit us to take these actions.
D. You confirm and warrant to us that you have all the rights, power, and authority necessary to grant the above license.
13. Removal of Content. We reserve the right (but have no obligation) to remove, block, edit, move, or disable User Content that is objectionable to us for any reason. The decision to remove User Content or other Content at any time is in our sole and final discretion. To the maximum extent permitted by applicable law, we do not assume any responsibility or liability for User Content or for any failure to or delay in removing User Content or other Content. You are solely responsible for your User Content and may be held liable for User Content that you post.
14. DMCA Notice. If you believe that any content on the Site violates these Terms or your intellectual property rights, you can report such violation to us in accordance with the Digital Millennium Copyright Act (17 U.S.C. §512). In the case of an alleged infringement, please provide the following information:
A. A description of the copyrighted work or other intellectual property that you claim has been infringed;
B. A description of where the material that you claim is infringing is located on the Site (including the exact URL);
C. An address, a telephone number, and an e-mail address where we can contact you;
D. A statement that you have a good faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
E. A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf; and
F. Your electronic or physical signature, or that of the person authorized to act on behalf of the owner of the copyright or other right being infringed.
G. We may request additional information before we remove allegedly infringing material. You may report a copyright violation by providing the above information to the designated agent listed below.
California Medical Association
1201 J Street, Suite 200, Sacramento, California 95814
Attn: General Counsel
H. We will terminate the User account of any User who repeatedly submits content that violates our intellectual property policies. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had Content removed from the Site more than twice.
15. Fees; Billing
A. Fees. Fees for any Services are described on the applicable Site page. We may change our fees at any time, which will be effective when posted.
B. Payment Terms.
i. Unless different payment terms are specified on a particular Site page, all fees are due in full upon purchase of the applicable Service or product.
ii. You agree to pay interest on any delinquent amount at the rate of the maximum rate allowed by law. We will automatically charge the credit/debit card on file for your Account (the “payment method”) for any and all monies owing on your Account (including interest), for as long as your account is open, regardless of whether or not you are using the purchased Services. You agree to pay attorneys’ fees and court costs if any amounts due to us are collected by or through an attorney or collections service.
C. Credit Card Processing. We use Stripe, Authorize, PayPal, and other payment processing providers and platforms. Your use of any of these provider’s services is subject to your agreement to and continued compliance with their terms and conditions.
16. Suspension of Service. We may suspend a User’s account and access to the Services, with or without notice, if any provision in these Terms is violated.
17. Term; Termination
A. These Terms shall continue until terminated.
i. We reserve the right to stop providing the Services to you at any time for any reason without prior notice.
ii. We reserve the right, in our sole discretion, to close your User Account, without prior notice, for any one or all of the following: (i) if you, whether intentionally or unintentionally, breach any section of these Terms, any supplemental rules and guidelines, any of the terms and conditions of the respective service providers; (ii) if we receive notice that you will be or are subject to insolvency proceedings; (iii) upon our receipt of any third party chargeback associated with any Payment Method tendered as payment on your User Account; (iv) if we do not receive a written response from you within 48 hours of any notice sent to you regarding a violation; (v) if, in our judgment, your use of the Site or of the Services has the potential to pose any harm; (vi) if your User Account becomes past due and is not paid within twenty days of becoming past due; (vii) if a hacked script or otherwise compromised website is discovered on our systems at the Services in use by you; (viii) if an unusual spike in resource usage is detected by our systems resulting in an account far outstripping the allotted resources; (ix) if you fail to cure any suspension of your User Account or any individual Service, to our satisfaction, and within the time frame we specify; or (x) if, in our judgment, we have received too many complaints about your posted User Content. In the event of any such closure of your User Account, you will not be eligible for a refund of any fees and you may be prohibited from reopening your User Account, opening a new User Account, or accessing any existing User Account. You agree that we shall not be liable, in any way, for any closure pursuant to this section of these Terms.
iii. Upon any closure of your User Account: (i) these Terms and all rights granted under these Terms shall cease immediately (except those expressly surviving or which by their nature would survive); (ii) all access to the Services and your User Account will cease immediately; (iii) you will be billed for, and we may automatically attempt to collect from your Payment Method, any outstanding amount owed; and (iv) all User Content may be deleted from our servers and backup systems and we may not have or keep backup of your User Content. You agree to hold us harmless from and against any and all claims, losses, or damages arising from any closure of your User Account. Any and all sections in these Terms which impose obligations continuing in their nature shall survive closure or otherwise continue to remain in full force and effect even after account closure. You are not permitted to access your User Account or any of the Services formerly associated with your User Account following any closure.
iv. The Effects of Suspension. Upon any suspension of your User Account, all Service associated with your User Account will be suspended or otherwise made inaccessible until and unless all issues are addressed and resolved by you, to our satisfaction, and within the time frame we specify. During any suspension of your User Account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade, or modify any of the Services; (ii) request an emergency restoration (iii) transfer any Services, including but not limited to domain name registrations; (iv) access any of the websites, email accounts, or User Content associated with the suspended Services or account. You agree to hold us harmless from and against any and all claims, losses, or damages arising from any suspension of your User Account or the individual Services.
18. Intellectual Property
A. Ownership. Ownership of all intellectual property and other rights in the Services and our Site, including, but not limited to, information, data, materials, interfaces, computer code, databases, products, services, resources, images, photographs, audio and video material, artwork, design, layout, content, links, and other content shall remain with us and our licensors, developers, and partners, as applicable. CMA Content is the property of CMA, its licensors, sponsors, partners, advertisers, content providers or other third parties and is protected by law including, but not limited to, copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws, treaties, and regulations. You may not alter, delete, obscure, or conceal any copyright or other notices appearing in the CMA Content, including any such notices appearing on any CMA Content. You are not permitted to download, transmit, display, print, use, or reproduce from the Site except when expressly and specifically granted that permission. We reserve all rights not specifically granted in these Terms.
B. Trademarks. CMA, the logo, as well as all other trademarks we use are trademarks or registered trademarks of CMA, its affiliates, subsidiaries, affinity partners, or of our licensors. Other than as specifically provided herein, you may not use these trademarks in any other way, including, but not limited to, that our trademarks may not be copied or imitated in whole or in part by any means, including but not limited to, the use of framing or mirrors. None of the content for our website may be retransmitted without our express written consent. Any use of these trademarks by you, whether or not permitted, inures to our benefit.
C. You own all User Content you upload to the Site. When you upload User Content to the Site, you expressly grant to us, our affiliates, employees, agents, representatives, licensors or other third party partners, and the successors and assigns of each of the foregoing a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable license and right to use, without restriction, including, but not limited to the right to quote, re-post, publish, use, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, and otherwise communicate, and publicly display or perform the User Content and to provide such User Content to any other User of the Service, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment, or attribution of any kind to you or any third party. You grant us all licenses, consents, and clearances to enable us to use such User Content for such purposes. You waive and agree not to assert any moral or similar rights you may have in such User Content.
D. Any improvements or modifications you suggest, we own, and you agree to and do hereby assign to us all your right, title, and interest in and to any modifications and improvements automatically upon creation and without the need for further action or notice to affect such assignment.
A. THIS SITE AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THIS SITE, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OTHER THAN AS EXPRESSLY STATED HEREIN. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY, OR OTHERWISE. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
B. Medical and Legal Disclaimer. The CMA Content is provided for informational purposes only and is not intended as medical or legal advice, or as a substitute for the medical advice of a physician or the legal advice of an attorney.
20. Limitation of Liability
A. OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF OUR SERVICE) ARISING OUT OF OR IN RELATION TO THESE TERMS OR YOUR USE OR INABILITY TO USE THE SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OUR SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF THE SERVICE, THE USE OF THE SERVICE, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE, FORCE MAJEURE EVENTS, THE NON-RECOGNITION OF OUR HOSTING SERVICE’S SERVERS, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
B. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AFFINITY PARTNERS, AND LICENSORS ARISING OUT OF OR RELATING TO THE SERVICE OR ANY USER CONTENT IS TO STOP USING THE SERVICES, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT WE, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AFFINITY PARTNERS, AND LICENSORS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION, OR CONTENT ON THE SITE OR THE SERVICES. IN NO CASE SHALL OUR LIABILITY OR THAT OF OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AFFINITY PARTNERS, AND LICENSORS TO YOU EXCEED THE GREATER OF: (A) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES; OR (B) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THAT OF OUR SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AFFINITY PARTNERS, AND LICENSORS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
D. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
21. Indemnification. By utilizing the Site or the Services, you agree to indemnify, defend, and hold us and our officers, directors, employees, agents, affiliates, and affinity partners harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by us through your use of the Site or the Services or your posting or transmission of User Content in violation of these Terms (including, but not limited to, negligent or wrongful conduct, infringement of any third party’s intellectual property, confidentiality, privacy or publicity rights). You also agree to take sole responsibility for any royalties, fees, or other monies owed to any person by reason of any content you post or transmit through the Site or the Services we provide. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. This Section shall survive any expiration or termination of these Terms.
22. Cooperation With Law Enforcement or Government Agencies.
A. You acknowledge that we have the right to investigate and prosecute violations of these Terms, including intellectual property, publicity and privacy rights infringement, and Site security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Site or the Services, but we have the right to do so for the purpose of operating the Site and the Services, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental or regulatory body.
B. Required Disclosure of Personal Information. You understand and agree that we may disclose your Personal Information if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request, or if we believe that such action is necessary to; (a) conform to the law, comply with legal process served on us or our affiliates, subsidiaries, or affinity partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) enforce these Terms (including for billing and collection purposes), take precautions against liability, investigate and defend ourselves against any third-party claims or allegations, assist government enforcement agencies, or protect the security or integrity of our site; or (c) exercise or protect the rights, property, or the safety of us, our users, or others.
23. Our Security Measures. We take data security and privacy very seriously. We take reasonable precautions to protect the security of your information. We have physical, electronic, and managerial procedures to help safeguard, prevent unauthorized access, maintain data security, and correctly use your information. However, neither people nor security systems are foolproof, including encryption systems. In addition, people can commit intentional crimes, make mistakes, or fail to follow policies. Therefore, while we use reasonable efforts to protect your information, we cannot guarantee its security. You are responsible for the security of your personal information. You should avoid transmitting personal or sensitive information, such as social security numbers, bank, or credit card information.
24. Taxes. If any federal, state, or local governmental entity with taxing authority over the Site or the Services imposes a tax, duty, or fee directly on the Site or the Services provided to you by us under these Terms (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then we may pass the direct amount of such tax on to you, and you shall promptly pay that tax.
25. Disputes; Resolution; Arbitration
A. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or use of the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
B. Arbitration. In the event of any dispute, claim, question, or disagreement arising from or relating to these Terms, or the relationship that results from these Terms, other than claims for injunctive or other equitable relief (a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty (30) days, then the Dispute shall be resolved by binding arbitration in Sacramento, California USA, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within the time provided herein, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such Dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the Dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing, shall be final, judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification, or appeal, except to the extent permitted by sections 10 and 11 of the Federal Arbitration Act, the terms of which sections the parties agree shall apply. The expenses of arbitration, including reasonable attorneys’ fees and the fees and expenses of the arbitrator, shall be shared equally by the parties.
C. The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The arbitrator will not make any ruling, finding, or award that does not otherwise conform to these Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.
D. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Further, judgment on the arbitrators’ award may be entered in any court having jurisdiction.
E. These Terms shall not be governed by the United Nations Convention on the International Sale of Goods.
26. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
27. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under these Terms or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
A. Governing Law. For all legal proceedings arising out of use of the Site and/or the Services and/or relating to these Terms, these Terms and the relationship between you and us shall, irrespective of any choice of laws rules, be governed by and construed in accordance with the laws of the State of California. You and we hereby irrevocably and unconditionally submit to the jurisdiction of courts located in Sacramento, California or the court of competent jurisdiction closest thereto if no court of competent jurisdiction resides therein, and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. You and we irrevocably waive, to the fullest extent permitted by law, any objection that you may now or hereafter have to the laying of the venue of any proceeding brought in any such court or any claim that a legal proceeding commenced in such court has been brought in an inconvenient forum.
B. Assignment. You may not assign, convey, or transfer (whether by contract, merger, or operation of law) (collectively, “assign” or variants thereof) these Terms, in whole or in part, without our prior written consent, which may be granted or withheld by us in our sole discretion. Any attempted assignment in violation of these Terms will be of no power or effect. We may assign these Terms freely at any time without notice. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns. We reserve the right to, and you hereby consent to, our right to disclose, transfer, and/or assign your Personal Information in connection with a merger, consolidation, restructuring, financing, sale, or other transaction. In addition, when a potential buyer is interested in purchasing one of our properties, you agree that we may provide the potential buyer with your Personal Information, subject to the restrictions in these Terms.
C. Waiver. The failure to exercise or enforce any right or provision shall not affect our right to exercise or enforce such right or provision at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
D. Severability. If any portion of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in such provision, and, notwithstanding such finding, the remaining provisions of these Terms shall remain in full force and effect.
F. Headings. The headings of sections and paragraphs in these Terms are for convenience only and shall not affect interpretation.
G. Independent Contractors. The parties intend that an independent contractor relationship will be created by these Terms, and that no additional partnership, joint venture, employee, employer, or other relationship is intended. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of us, any of our affiliates, or its respective service providers.
H. Notice. You agree that we may provide you with notices, including those regarding changes to these Terms, by email to the address you provided at the time of registration or such changed address as you provide to us in your Account Data.
I. Contact Us. Our contact information is: 1201 J Street, Suite 200, Sacramento, California 95814; email: firstname.lastname@example.org; phone: (800) 786-4262. You may also contact us by clicking on the “Contact Us” button at the bottom of each page.