Effective Date: March 23rd, 2018
Welcome! You have arrived at www.garryshandling.com
and/or are otherwise interacting with our Service (
defined below), which is owned and operated by The Garry Shandling Separate Property Trust, LLC. (
our,” or “
Agreement” or “
Terms”) govern your use of any online service location (
e.g., website or mobile app) that posts a link to these Terms (
including both mobile and online versions). It also applies to your use of all features, widgets, plug-ins, applications, content, downloads and/or other services that (
i) we own and control and make available through a Site, and/or (
ii) that post or link to these Terms (
collectively, with the Site, the “
Service”), regardless of how you access or use it, whether via computer, mobile device or otherwise. If you are under the age of majority where you reside (
typically under 18) (
minor”), all legal responsibilities under this Agreement are assumed by your parent or legal guardian. As such, if you are a minor, please make sure to have your parent or legal guardian review and discuss this Agreement with you. By using the Services you agree to be bound by this Agreement, and parents and legal guardians agree to bind their minor children hereto and ensure their agreement and compliance. The Services are hosted in the United States.
You should read these entire Terms; but here is a partial list of some of the terms that we want to bring to your initial attention. Click on section references for details. Capitalized terms have the meanings given to them where defined in this Agreement.
- Each time you use the Service, the Terms, and any applicable Additional Terms (defined below), then posted apply (subject to Section 18 You may only use the Proprietary Content (defined below) on the Service in connection with your permitted activities on the Service and not in an offline environment or in connection with another site or service. (Section 2 and Section 5) You grant us a broad permission to use and exploit content you submit or post. (Section 8 and Section 9)
- As permitted by law, many types of disputes that may arise in connection with your access to and use of the Service are subject to mandatory arbitration – which includes your waiver of a right to a jury trial and to class action relief. (Section 14)
- We are providing the Service to you on an “as-is” basis, without any warranty of any kind, and our liability to you in connection with your use of the Service is very limited. Many other limitations and disclaimers relate to your use of the Service. (Section 11).
This Agreement includes (i) our policy for acceptable use of the Service, (ii) your rights, obligations, and restrictions regarding use of the Service, and (iii) our privacy practices. In order to participate in certain Service, you may be required to agree and consent to additional terms and conditions (“Additional Terms”). Such Additional Terms are hereby incorporated into this Agreement by this reference, but Additional Terms shall govern to the extent they conflict with this underlying Agreement.
Subject to any laws or regulations to the contrary, we expressly reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all or any part of the Service at any time, for any or no reason, with or without prior notice, and without incurring liability. As our Service evolves, our Terms may change as more fully explained in Section 8 so check for changes prior to use.
- Content. You acknowledge that the Service contains a variety of: (i) materials and other items relating to us and products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Company; and (iii) other forms of intellectual property that is owned by us and/or our officers, directors, employees, agents, third-party content providers, affiliates, sponsors, and licensors (collectively, the “Providers”) (the “Proprietary Content”). Such Proprietary Content includes, without limitation, television and/or film trailers and clips, photographs, text, wallpaper, icons, games, and graphics. Such Proprietary Content is protected by copyright and trademark law, and other laws governing ownership of intellectual property as well as by international treaties. You acknowledge that the intellectual property rights of Providers are valid and protected in all forms, media, and technologies now existing or hereafter developed. Except as permitted by applicable law or as explicitly provided in any applicable Additional Terms, you may not reproduce, distribute, modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works based upon, or in any way exploit any of the Proprietary Content, in whole or in part, without obtaining permission from the owner(s) of the copyrights, trademarks and/or other propriety rights to such Proprietary Content. In addition to the foregoing, your use of any software contained in, or in connection with, the Service shall be governed by the applicable software license agreement governing the use of such software.
- Ownership. The Service (including past, present, and future versions) and the Proprietary Content are owned or controlled by Company and our licensors and certain other third parties. All right, title, and interest in and to the Proprietary Content available via the Service is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Company owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Proprietary Content on the Service. You acknowledge and agree that nothing in this Agreement shall have the effect of transferring the ownership of any copyrights, trademarks, slogans, service marks, trade names or other proprietary rights in and to the Service or Proprietary Content, or any part thereof.
Subject to your strict compliance with this Agreement, including any Additional Terms, Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download and copy (temporary storage only), display, view, use, play the Proprietary Content on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”), and/or print one copy of the Proprietary Content (excluding source and object code in raw form or otherwise ) as it is displayed to you, in each case for your personal, non-commercial use of the Service only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Proprietary Content, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use certain specific Proprietary Content, subject to certain Additional Terms.
Distribution/Uploading Of Third-Party Content
You may not post, modify, distribute, or reproduce Proprietary Content in any way, except as may be specifically permitted by these Terms or any Additional Terms, without obtaining the prior written consent of the applicable Provider of such Proprietary Content. If we are notified by any Provider of Proprietary Content that any user has infringed upon the intellectual property rights of such Provider with respect to such Proprietary Content, we reserve the right to terminate the infringer’s access to the Service. Please understand that the unauthorized submission or distribution of Proprietary Content is illegal and could subject you to criminal prosecution as well as personal liability for damages in a civil suit. You will be liable for any damages resulting from any infringement of copyrights or other proprietary rights, or from any other harm arising from such submission.
If the Provider of any Proprietary Content expressly permits the distribution of such Proprietary Content by users of the Service, any such permitted use of the Proprietary Content shall contain a copyright or trademark notice, such as “Copyright, [name of owner] [date]; used with permission.”
If any user submits any copyrighted or other Proprietary Content, including, without limitation, written information, photographs, videos, graphics, music, sounds, or other material to the Service (collectively, “User Content”), the user automatically grants to us, or warrants that the owner(s) of all rights in and to such User Content has expressly granted to us, a royalty-free, irrevocable, right and license, during the full term of the legal protection of such User Content, to use, reproduce, publish, translate, sublicense, copy, and distribute the User Content, in whole or in part, worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed. We may also permit any other Service users to access, store, or reproduce the User Content for those users’ personal use. Subject to foregoing grants of rights and to any other terms and conditions which may be applicable to the submission of such User Content, the owner of the User Content placed on the Service retains any and all rights which may exist in such User Content and is responsible for all third party claims arising out of it.
Each time you submit any User Content, you represent and warrant that, as to the User Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Content, and/or you have a lawful right to submit the User Content and grant Company the rights to it that you are granting by these Terms and any Additional Terms, all without any Company obligation to obtain consent of any third party (including without limitation parental consent) and without creating any obligation or liability of Company (b) the User Content is accurate; (c) the User Content does not and, as to Company’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
Any California residents under the age of eighteen (18) who have registered to use the Service, and who have posted User Content or information on the Service, can request that certain information be removed from the Service by contacting us at the e-mail or address set forth in the “Questions” section below making such a request, stating that they personally posted such User Content or information and detailing where the User Content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view or anonymize it so the minor cannot be individually identified. This removal process cannot ensure complete or comprehensive removal. For instance, third-parties may have republished the post and archived copies of it may be stored by search engines and others that we do not control.
Copyrights and Copyright Agent
We have adopted a policy that provides for the possible termination in appropriate circumstances of users and account holders who infringe the rights of copyright holders of Proprietary Content or User Content. If you believe that your work appearing on the Service has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, (“DMCA”) 17 U.S.C. 512:
a description of the copyrighted work that you claim has been infringed;
a description of the location where the material that you claim is infringing is located;
a statement by you that you have a good faith belief that the reported use is not authorized by the copyright or intellectual property owner, its agent, or the law;
your name, address, telephone number, and, if available, email address but only if you are 13 or older (if you are not yet 13, your parent or guardian should provide the parent or guardian’s name, address, telephone number and, if available, email address);
a statement by you (or by your parent or guardian if you are under the age of majority in your state of residence), made under penalty of perjury, that the above information is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf; and an electronic or physical signature by the person making the submission (i.e., you or such other person authorized to act on behalf of the copyright holder). If the submission is made electronically, to satisfy the signature requirement please designate the electronic signature by typing a forward slash before and after the name of the authorized person making the submission (e.g., /Jane Doe/).
Upon receipt of information from you that substantially complies with all of the requirements set forth above, we will investigate your claim and respond expeditiously. If we determine that the material cited by you constitutes copyright infringement, we will remove, or “take down” the infringing material. At that point we will notify the individual who uploaded the alleged infringing material, as required by statute, and allow them the opportunity to take advantage of the “counter-notice” and “put-back” provisions of the DMCA. Please do not contact our DMCA copyright agent for inquiries other than those relating to alleged copyright infringement
For copyright infringement inquiries under the DMCA please contact:
The Garry Shandling Separate Property Trust, LLC
We are an online provider of content, much of which is supplied by third parties and users. We have no more editorial control over such content than does a public library or newsstand. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties, including any other user, are those of the respective authors or distributors of the content, and not ours, our affiliates, their officers, directors, employees, or agents. While we use reasonable efforts to make sure that content posted by third parties is appropriate for the Service, we do not guarantee the accuracy, completeness, appropriateness or usefulness of any Proprietary Content or User Content appearing on the Service, nor its merchantability or fitness for a particular purpose. We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice, or statement made on the Service by anyone other than us. Under no circumstances shall we, or our affiliates, or any of our officers, directors, employees, or agents be liable for any loss, damage or harm caused by information obtained through the Service. It is your responsibility to evaluate the information, opinions, advice, or other content available through the Service.
Parents may want to consider commercially available parental control protections and child protection software options to limit what minors can access online and/or monitor their minor children’s online activities.
- LINKS TO THIRD PARTY SERVICES
The Service may contain links to third party websites (“Linked Sites”). The Linked Sites are not under our control and we are not responsible for the content or information collection policies of any such Linked Sites. We encourage you to read and review the privacy policies of such Linked Sites. We are only providing the Linked Sites to you as a convenience, and the inclusion of any Linked Sites on the Service does not imply endorsement of the views or opinions expressed on such sites by us or any of our Providers. Further, we cannot guarantee the quality or availability of such Linked Sites.
The Service may contain advertisements. The advertisers and/or third parties that provide these advertisements are solely responsible for insuring that the advertising materials submitted for inclusion on the Service are accurate and comply with all applicable laws. While we take great care in setting advertising policies designed to limit advertisements on the Service to those that are not clearly inappropriate, in our own opinion, for our audience, we are not responsible for any ads you find inappropriate, for any errors in such advertisements, or for the acts or omissions of any advertiser or third party providing advertisements that appear on the Service.
- RULES OF CONDUCT
You, as a user, agree to use the Service only for lawful purposes. The following is a partial list of the kinds of content and activity that is illegal or prohibited on and through your use of the Service (the “Prohibited Material”). We reserve the right to investigate and take appropriate action, in our sole discretion, against anyone who violates this provision, including without limitation, removing the offending communications from the Service, terminating the account of such violator, reporting such violator to law enforcement authorities and taking legal action against the offender.
Prohibited Material includes, but is not limited to, activity and/or content that:
is or advocates conduct that is offensive, harmful, threatening, abusive, defamatory, vulgar, obscene, sexually explicit, profane, hateful, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
is false or misleading;
involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
constitutes, furthers or promotes any criminal or tortious activity or enterprise or provides instructional information about illegal activities including, but not limited to violating someone’s privacy, or providing or creating computer viruses;
solicits personal information for commercial or unlawful purposes from other users;
involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
interferes with, disrupts, or creates an undue burden on the Services or the networks connected to the Service;
uses any information obtained from the Service in order to harass, abuse, or harm another person;
uses the Service in a manner inconsistent with any applicable laws and regulations;
or otherwise violates any applicable local, state, national or international law.
If we are notified of any User Content on the Service provided by you that qualifies as Prohibited Material, we may investigate the allegation and determine in our sole discretion whether to remove or request the removal of such content from the Service. We may disclose any content or electronic communication of any kind (i) to satisfy any law, regulation, or court/government order or request; (ii) if such disclosure is necessary or appropriate to operate our Service; or (iii) to protect our rights or property as well as that of our Providers and any other user.
We reserve the right to prohibit conduct or communications that we deem, in our sole discretion, to be inappropriate or harmful (whether to us, to individual users, to the Service, to our Providers, to the communities that use the Service, or to any third party), or which we believe to violate any applicable law. Notwithstanding the foregoing, neither we nor any of our Providers can assure you that other users will comply with the provisions of this Agreement, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance. Furthermore, neither we nor any of our Providers can ensure prompt removal of questionable content. Accordingly, neither we nor any of our Providers shall assume liability for any action or inaction with respect to any inappropriate or harmful conduct, communication, or content on the Service.
- USE RESTRICTIONS
The Service is for your personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by us in writing. Illegal and/or unauthorized use of the Service, including unauthorized commercial use of photographs contained thereon, collecting user names and/or information pertaining to other users by electronic or other means for the purpose of sending unsolicited email or unauthorized linking to the Service is prohibited. Appropriate action will be taken for any illegal or unauthorized use of the Service.
Service Use Restrictions
You agree that you will not: (i) aside from your purchase of goods or services that may be offered for sale by Company or its affiliates, use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Company; (iv) to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Company, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Proprietary Content, or the User Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including e-mail addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
Content Use Restrictions
You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Proprietary Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Proprietary Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Proprietary Content; (iv) you will not use such Proprietary Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Proprietary Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Proprietary Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Company or, in the case of Proprietary Content from a licensor, the owner of the Proprietary Content; and (vii) you will not insert any code or product to manipulate such Proprietary Content in any way that adversely affects any user experience.
- YOUR ACCOUNT
If you use the Service, you agree to accept responsibility for (i) keeping confidential any password that you entered to use the Service, (ii) restricting access to your computer, and (iii) all activities that occur under your account and password. You further agree to provide us with accurate information in response to any requests for information made on the Service. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including, but not limited to using another person’s username, password, or account information or another person’s name, likeness, voice, image or photograph. You must promptly notify us of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving the Service.
- SOLICITED SUBMISSIONS
- UNSOLICITED SUBMISSIONS
- ELECTRONIC COMMUNICATIONS
When you send emails to us, you are communicating with us electronically, which constitutes your consent to receive responses from us electronically. We may communicate with you by email, your account, or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communication we provide to you electronically satisfy any legal requirement that such communications be in writing.
- DISCLAIMERS AND LIMITATION OF LIABILITY
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING,
NEITHER WE NOR ANY OF OUR PROVIDERS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OF THE SERVICE; (II) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE SERVICE; OR (IV) THAT THE SERVICE, ITS SERVERS, OR E-MAIL SENT FROM OR ON BEHALF OF US ARE FREE OF VIRUSES, MALWARE, OR OTHER HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR PROVIDERS GUARANTEES THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICE. NUMEROUS FACTORS BEYOND OUR CONTROL OR THE CONTROL OF ANY OF OUR PROVIDERS MAY INTERFERE WITH THE OPERATION OF THE SERVICE.
UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM THE SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, MALWARE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL PROPRIETARY CONTENT, ADVERTISEMENTS, MERCHANDISE, AND SERVICES AVAILABLE THROUGH THE SERVICE.
THE INFORMATION AND MATERIALS PRESENTED ON THIS SERVICE ARE INTENDED FOR ENTERTAINMENT PURPOSES ONLY AND SHOULD NOT BE RELIED UPON OR SUBSTITUTED FOR MEDICAL ADVICE, TREATMENT OR DIAGNOSIS. ADULT SUPERVISION IS RECOMMENDED.
NEITHER WE NOR ANY OF OUR PROVIDERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THE SERVICE, EVEN IF WE OR OUR PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A USER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH USER, AND SUCH USER MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW.
The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement is held to be invalid or unenforceable, in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the validity or enforceability of any of the remaining provisions hereof in any jurisdiction.
- APPLICABLE LAW; JURISDICTION
The Service is created and controlled by us in the State of California, and resides on servers in California. As such, the laws of the State of California will govern this Agreement, without giving effect to any principles directing the choice of another jurisdiction’s laws. The parties understand and agree that the exclusive venue shall be Los Angeles, California.
- BINDING ARBITRATION AND NO CLASS ACTIONS
Subject to our right to seek provisional remedies or injunctive relief is provided below, any controversy or claim arising out of or relating to this Agreement or any related agreement, their enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of their provisions, shall be determined by binding arbitration. The arbitration proceedings shall be held and conducted by a single arbitrator in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), as modified by this Agreement. Such arbitration shall occur in Los Angeles, California and may be initiated by any party in accordance with the JAMS Rules. The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than would be available from a court under the statutory or common law theory asserted. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or both, as applicable to the claim(s) asserted. It is the arbitrator’s responsibility to allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses). The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award. Judgment on the award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in order to protect our intellectual property rights and to support our rights and remedies hereunder without waiving any right to arbitration.
Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND WE 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. There shall be no right or authority for any dispute to be arbitrated or otherwise brought on a class action basis or on any basis involving disputes brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate will not apply unless we consent to arbitrate.
All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of this Agreement or the Service.
You agree to indemnify and hold us, our Providers, and our and their subsidiaries, affiliates, and respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including attorneys’ fees, made by any third party due to or arising out of: (i) your use of the Service in violation of this Agreement ; (ii) your breach of this Agreement; (iii) any breach of your representations and warranties set forth in this Agreement; and (iv) any User Content that you post on or through the Service or otherwise submit to us.
This Agreement is accepted upon your use of the Service. This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permitted by law.
This Agreement (including any applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR APPLICABLE ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms each time you use the Service (at least prior to each transaction or submission). Any new terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use and any specific term to which we previously committed to apply those terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, your account page (if applicable), and the e-mail you associated with your account (if applicable) for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or additional terms by discontinuing use of the Service.