Please read this agreement carefully. It sets forth the legally binding terms and conditions for your use of the service and services available through The Collective Rising.
Updated July 02, 2020
The target audience for the Service, and its participants, is adults over the age of eighteen (18). If you are under the applicable age of majority in your jurisdiction of residence, by using the Service, you certify that your parents/guardians have consented to your use and to these Terms on your behalf, and you acknowledge and agree that your use of the Service is at their discretion. Until you are the age of majority in your jurisdiction of residence, your parents/guardians may ask us to modify, deny access to, or terminate your account and we may do so at their request or any time, for any reason, without notice or liability.
If You Want to Use the Service.
then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms. Therefore, do not use the Service if you do not agree. If you are under the age of majority in your state or jurisdiction of residence, you may use the Service only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
By accessing and/or using the Service, you agree to be bound by these Terms.
1. Service Content, Ownership, Limited License and Rights of Others
The Service contains a variety of: (i) materials and other items relating to TCR, and its 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, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of TCR (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
The Service (including past, present, and future versions) and the Content are owned or controlled by TCR, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of TCR or our licensors or certain other third parties, and is protected by copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. TCR owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
(c) Limited License
Subject to your strict compliance with these Terms, TCR grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Service explicitly for you for use as part of your User-Generated Content (defined below) (“TCR Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the TCR Licensed Elements are made available on the Service; but we and our licensors and certain other third parties, as the case may be, retain ownership of such TCR Licensed Elements. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in TCR’s sole discretion, and without advance notice or liability.
(d) Rights of Others
When using the Service, you must respect the intellectual property and other rights of TCR and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 4 below.
1. Service Content, Ownership, Limited License and Rights of Others
(a) Service Use Restrictions
You agree that you will not: (i) 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, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to TCR; (iv) 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, TCR, 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 Content, or the User-Generated Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email 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.
(b) Content Use Restrictions
You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the 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 Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such 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 Content (other than to the extent of your permitted use of the TCR Licensed Elements, if applicable); (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 Content in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of an officer of TCR or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
(c) Availability of Service and Content
TCR may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in TCR’s sole discretion, and without advance notice or liability.
(d) Reservation of All Rights Not Granted as to Content and Service
These Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by TCR and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
3. Content You Submit and Community Usage Rules
(a) User-Generated Content
(i) General. TCR may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, interviews, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, but excluding TCR Licensed Elements included therein, “User-Generated Content”). TCR may allow you to do this through forums, message boards, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
(iii) License to TCR of Your User-Generated Content. You grant to TCR the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to TCR to your User-Generated Content, you also hereby grant to TCR, and agree to grant to TCR, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section.
(iv) Exclusive Right to Manage Our Service. TCR may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and TCR may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms, including, without limitation, the content restrictions set forth below in the Rules [LINK] (defined in Section 3(B) [LINK]). Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant TCR the rights to it that you are granting by these Terms, all without any TCR obligation to obtain consent of any third party and without creating any obligation or liability of TCR; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to TCR’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-Generated Content will not violate these Terms, or cause injury or harm to any person.
(vi) Representations and Warranties Related to Your Nomination Requests. Each time you request to nominate an individual to be featured on the website, you represent and warrant that you have obtained the nominee’s authorization and consent to provide us the nominee’s contact information for the purpose of us contacting the nominee.
(vii) Enforcement. TCR has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at TCR’s cost and expense, to which you hereby consent and irrevocably appoint TCR as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
(b) Community Usage Rules
As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Service’s online communities (“Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
• Your User-Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User- Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to TCR (for example, if someone has taken a picture of you and your friend, and you submit that photo to TCR as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.).
• Speaking of Photos: No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
• Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, appearances, age, religion, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
• Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don’t Share Other Peoples’ Personal Information. Your publicly displayed User-Generated Content should not reveal another person’s address, phone number, email address, social media handles, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by TCR. The forgoing does not apply to email addresses and social media handles provided to TCR as part of a nomination form.
• Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
If you submit User-Generated Content that TCR reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
(c) Alerting Us of Violations
If you discover any content that violates these Terms, then you may report it to us here. For alleged infringements of intellectual property rights, see Sections 4 and 5, below.
4. Procedure For Alleging Copyright Infringement
(a) DMCA Notice
TCR will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
TCR will only respond to DMCA Notices that it receives by mail, email or facsimile at the addresses below:
It is often difficult to determine if your copyright has been infringed. TCR may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and TCR may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting TCR’s other rights, TCR may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by TCR.
If access on the Service to a work that you submitted to TCR is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, and email address;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
5. Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(d) your full name, address, telephone number and email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to TCR with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
6. Notices and Questions
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us at firstname.lastname@example.org. You acknowledge that the provision of customer support is at TCR’s sole discretion and that we have no obligation to provide you with customer support of any kind.
7. Links by You to the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with TCR or cause any other confusion, and (c) the links and the content on your website do not portray TCR or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is 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 TCR. TCR reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
8. Linked-To Websites; Advertisements; Dealings with Third Parties
(a) Linked Services; Advertisements
The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with TCR. TCR may have no control over the content, operations, policies, terms, or other elements of Linked Services, and TCR does not assume any obligation to review any Linked Services. TCR does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, TCR is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services. Finally, TCR will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. TCR disclaims all liability in connection therewith.
(b) Dealings with Third Parties
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). TCR disclaims all liability in connection therewith.
9. Dispute Resolution
(a) First – Try to Resolve Disputes and Excluded Disputes
If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, or these Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of TCR’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 9(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 9(A). Your notice to us must be sent via email to: email@example.com. For a period of sixty (60) days from the date of receipt of notice from the other party, TCR and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or TCR to resolve the Dispute or Excluded Dispute on terms with respect to which you and TCR, in each of our sole discretion, are not comfortable. If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and TCR agree that we intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act.
(b) Binding Arbitration
If we cannot resolve a Dispute as set forth in Section 9(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND TCR (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between TCR and you regarding these Terms and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. TCR and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 9(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and TCR regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of TCR consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Los Angeles, California. You will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require TCR to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then TCR will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. 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 these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
(c) Injunctive Relief
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 9(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 9(A); (b) filing for arbitration as set forth in Section 9(B); or (c) filing an action in state or Federal court.
(d) Limited Time to File Claims
The foregoing provisions of this Section will not apply to any legal action taken by TCR to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or TCR’s intellectual property rights (including such TCR may claim that may be in dispute), TCR’s operations, and/or TCR’s products or services.
(e) No Class Action Matters
YOU AND TCR 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 OR AS AN ASSOCIATION. 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. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in 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 in Section 9(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 9(F). Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
(f) Jurisdictional Issues
Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in the state of California in Los Angeles County. Accordingly, you and TCR consent to the exclusive personal jurisdiction and venue of such courts for such matters.
(g) Small Claims Matters Are Excluded from Arbitration Requirement
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
(h) Governing Law
These Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of California.
10. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, TCR, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “TCR Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User-Generated Content transmitted to TCR via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to, or errors on, the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN BY TCR, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TCR HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
11. LIMITATIONS OF OUR LIABILITY
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL TCR BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(a) the Service (including the Content and the User-Generated Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by TCR or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if TCR were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TCR’S TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TCR TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S). FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
U.S. residents further understand and expressly agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly and forever waived. You acknowledge that Section 1542 provides that: “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.” The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
12. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY TCR (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF TCR.
13. Updates to Terms
14. General Provisions
(a) TCR’s Consent or Approval
As to any provision in these Terms that grant TCR a right of consent or approval, or permits TCR to exercise a right in its “sole discretion,” TCR may exercise that right in its sole and absolute discretion. No TCR consent or approval may be deemed to have been granted by TCR without being in writing and signed by an officer of TCR.
You agree to, and you hereby, defend, indemnify, and hold TCR Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any TCR, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) TCR Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by TCR in the defense of any Claims and Losses. Notwithstanding the foregoing, TCR retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. TCR reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of TCR.
(c) Severability; Interpretation
If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
(e) Investigations; Cooperation with Law Enforcement; Termination; Survival
TCR reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) investigate any information obtained by TCR in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms, and (vi) discontinue the Service, in whole or in part, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to TCR under these Terms. Upon suspension or termination of your access to the Service, or upon notice from TCR, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to TCR in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
TCR may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of TCR.
(g) No Waiver
Except as expressly set forth in these Terms (i) no failure or delay by you or TCR in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict TCR’s right to amend these Terms as otherwise permitted in those agreements.
(h) California Consumer Rights
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.