The Experience Manager, Inc.
TERMS OF SERVICE
Effective Date: May 6, 2019
Please read this Terms of Service Agreement (the “Terms of Service”) carefully. These Terms of Service govern your use of the website located at: theexperiencemanager.com (the “Website”), and hosted services available therein that enable users to access, manage and collaborate on files and other content (the “Services”) that are offered by The Experience Manager Inc. (the “The Experience Manager” or “we”).
BY CLICKING ON THE “SIGN UP” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE AND/OR USING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE EXPERIENCE MANAGER, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE EXPERIENCE MANAGER YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM“YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE WEBSITE OR SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR AN ADDITIONAL PERIOD OF THE SAME DURATION AS THE INITIAL TERM AT THE EXPERIENCE MANAGER’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF AUTO-RENEWAL IN ACCORDANCE WITH SECTION 3.2.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Your use of, and participation in certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplement Service. If these Terms of Service and inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms”.
PLEASE NOTE THATTHE TERMS ARE SUBJECT TO CHANGE BY THE EXPERIENCE MANAGER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, The Experience Manager will make a new copy of the Terms of Service available at the Website. We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below), we may also send an email to you at the last email address you provided to us pursuant to the Terms. The Experience Manager may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services
The Website and the Services provided by The Experience Manager via the Website (collectively, the “The Experience Manager Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by The Experience Manager in a separate license, your right to use any The Experience Manager Properties is subject to the Terms.
1.1 Access to Services. Subject to the terms and conditions of these Terms, The Experience Manager hereby grants to you a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service which you ordered (and The Experience Manager accepted) via an order form or the Website’s ordering page (each, an “Order”), solely for your internal business or personal (non-commercial) use purposes.
1.2 Updates. You understand that The Experience Manager Properties are evolving. You acknowledge and agree that The Experience Manager may update The Experience Manager Properties with or without notifying you. You may need to update third-party software (e.g. your device’s operating system) from time to time in order to use The Experience Manager Properties..
1.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit The Experience Manager Properties or any portion of The Experience Manager Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other The Experience Manager Properties (including images, text, page layout or form) of The Experience Manager; (c) you shall not use any metatags or other “hidden text” using The Experience Manager’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of The Experience Manager Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access The Experience Manager Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of The Experience Manager Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in The Experience Manager Properties. Any future release, update or other addition to The Experience Manager Properties shall be subject to the Terms. The Experience Manager, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of The Experience ManagerProperties terminates the licenses granted by The Experience Manager pursuant to the Term.
1.4 Unauthorized Use. You agree that you will not, under any circumstances: (a) interfere with or damage The Experience Manager Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (b) modify or cause to be modified any files that are a part of The Experience Manager Properties; (c) disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support The Experience Manager Properties; or (ii) the enjoyment of The Experience Manager Properties by any other person; (d) attempt to gain unauthorized access to The Experience Manager Properties, accounts registered to others, or to the computers, servers or networks connected to The Experience Manager Properties by any means other than the User (as defined in Section 2.1) interface provided by The Experience Manager, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of The Experience Manager Properties; (e) access, tamper with or use non-public areas of The Experience Manager Properties, The Experience Manager’s computer systems, or the technical delivery systems of The Experience Manager’s providers; (f) attempt to probe, scan, or test the vulnerability of any The Experience Manager system or network, or breach any security or authentication measures; (g) disrupt or interfere with the security of, or otherwise cause harm to, The Experience Manager Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through The Experience Manager Properties or any affiliated or linked sites; or (h) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by The Experience Manager or any of The Experience Manager’s providers or any other third party to protect The Experience Properties
1.5 No Archive. The Service enables users to access, manage and collaborate on their files and content, but the Service itself does not reproduce, copy or store such files or content. This Service is not and shall not function as an archive. The Experience shall have no liability to you or any other person for loss, damage, or destruction to your information, including Your Content (as defined below). You shall be solely responsible for maintaining independent archival and backup copies of your information.
2.1 Registering Your Account. In order to access certain features of The Experience Manager Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user of the Services (“User”)who has registered an account on the Website (“Account”) or has linked a Third Party Account (as defined below) to the Website. (“Account”).
2.2 Registration Data. In registering for use of the Services you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (a) notify The Experience Manager immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or The Experience Manager has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, The Experience Manager has the right to suspend or terminate your Account and refuse any and all current or future use of The Experience Manager Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
2.3 Third Party Accounts. In order to access and use certain features of the Services, you will need to link your Account with third party account(s) (each, a “Third Party Account”) that govern your use and access to the applications, data services, software and content made available by third parties which are supported by our Services (collectively, “Third Party Services”). You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be accessible through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS, AND THE EXPERIENCE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD PARTY ACCOUNTS
3.1 Fees and Payment Terms. You will pay The Experience Manager the fees for the Service as described in the applicable Order. Unless otherwise agreed in the Order, all fees are billed in advance on an annual or monthly basis, as applicable, and are due as of the date of the invoice. All fees owed by you in connection with these Terms are exclusive of, and you shall pay, all sales, use, excise and other taxes and applicable export and import fees, custom duties and similar charges that may be levied upon you in connection with these Terms, except for employment taxes and taxes based on The Experience Manager’s net income. The Experience Manager reserves the right (in addition to any other rights or remedies it may have) to discontinue the Service and suspend your Account if any fees are more than thirty (30) days overdue until such amounts are paid in full. You must provide The Experience Manager with a valid credit card (Visa, MasterCard, or any other issuer accepted by The Experience Manager), or purchase order information as a condition to signing up for the services (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing The Experience Manager with your credit card number and associated payment information, you agree that The Experience Manager is authorized to immediately invoice your Account for all fees and charges due and payable to The Experience Manager hereunder and that no additional notice or consent is required. You agree to immediately notify The Experience Manager of any change in your billing address or the credit card used for payment hereunder. The Experience Manager reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by email delivery to you.
3.2 Automatic Renewals. Unless otherwise agreed in the applicable Order, your subscription will continue indefinitely until terminated in accordance with these Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an equivalent period, at The Experience Manager’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date by notifying The Experience at: email@example.com. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you WILL NOT be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize The Experience Manager to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if The Experience Manager does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that The Experience Manager may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for the purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
3.3 Free Trials and Beta Use. Any free trial or other beta use periods that provides you with access to the Services must be used within the specified time of the trial or beta use period. At the end of the trial/beta period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. In the event you are using the Services on a free trial or beta use basis, the terms of Section 6.2 will not apply to you and will be null and void.
4.1 The Experience Properties. You agree that The Experience Manager and its suppliers own all rights, title and interest in The Experience Manager Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying The Experience Manager Properties. The Experience Manager’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with The Experience Manager Properties are the trademarks of The Experience Manager and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in The Experience Manager Properties are the property of their respective owners.
4.2 Your Content. As between you and The Experience Manager, you retain all right, title and interest in and to any data, content or information you upload or transmit to the Services (“Your Content”). You hereby grant The Experience Manager a non-exclusive right to use Your Content for the purpose of providing you the Services;provided, however , you acknowledge and agree that The Experience may use Your Content on an aggregated and anonymized basis to provide and improve the Services. You represent and warrant that you have provided all notices and obtain all rights, consents and licenses necessary to grant The Experience Manager the foregoing license.
4.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to The Experience Manager through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that The Experience Manager has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to The Experience Manager a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of The Experience Manager Properties.
5. Third Party Services.
You understand and agree that the Services may make available certain Third Party Services, and that the access to and use of such Third Party Services, including the availability thereof and uptimes related thereto, is solely determined by the relevant providers of such Third Party Services (“Third Party Providers”). The Experience Manager will have no liability to you or any other person for any unavailability of any Third Party Services, or any Third Party Provider’s decision to discontinue, suspend or terminate any Third Party Services. You acknowledge and agree that certain Third Party Services may be subject to capacity limits and that you will not use any Third Party Services in excess of any capacity limits communicated by The Experience Manager to you. All right, title and interest in and to any Third Party Services are and shall remain the sole property of their respective Third Party Providers.
6.1 By You. You agree to indemnify and hold The Experience Manager, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “The Experience Manager Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; or (b) your violation of any applicable laws, rules or regulations. The Experience Manager reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with The Experience Manager in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to The Experience Manager Properties.
6.2 By The Experience. The Experience Manager will indemnify, defend and hold you harmless from any third party suit that alleges that your use of the Services in accordance with the terms herein, infringes such third party’s U.S. copyrights, trade secrets or trademarks, and The Experience Manager will pay all damages, judgments and/or settlements incurred by you in connection with such suit.
7. General Disclaimer of Warranties.
EXPERIENCE MANAGER PROPERTIES IS AT YOUR SOLE RISK, AND THE EXPERIENCE MANAGER PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE EXPERIENCE MANAGER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE EXPERIENCE MANAGER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE EXPERIENCE MANAGER PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE EXPERIENCE MANAGER PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EXPERIENCE MANAGER PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE EXPERIENCE MANAGER PROPERTIES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE EXPERIENCE MANAGER OR THROUGH THE EXPERIENCE MANAGER PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8. Limitation of Liability
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE EXPERIENCE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE EXPERIENCE MANAGER PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT THE EXPERIENCE MANAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE EXPERIENCE MANAGER PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE EXPERIENCE MANAGER PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE EXPERIENCE MANAGER PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE EXPERIENCE MANAGER PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE EXPERIENCE MANAGER PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE EXPERIENCE MANAGER PARTIES BE LIABLE TO YOU FOR MORE THAN AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
8.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE EXPERIENCE MANAGER AND YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. Term and Termination
9.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and until the termination or expiration of all Orders, unless terminated earlier in accordance with the Terms.
9.2 Termination of Services by The Experience. The Experience Manager may terminate these Terms at any time, including, without limitation, if you have materially breached any provision of the Terms and do not cure such breach within thirty (30) days of The Experience Manager’s notice of such breach, or if The Experience Manager is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), The Experience Manager has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in The Experience Manager’s sole discretion and that The Experience Manager shall not be liable to you or any third party for any termination of your Account.
9.3 Termination of Services by You. You may terminate these Terms in the event The Experience Manager breaches a material term of these Terms and does not cure such breach within thirty (30) days of your notice of such breach.
9.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your Account and all related information, and Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. All provisions of the Terms, which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
10.1 Violations. If The Experience Manager becomes aware of any possible violations by you of the Terms, The Experience Manager reserves the right to investigate such violations. If, as a result of the investigation, The Experience Manager believes that criminal activity has occurred, The Experience Manager reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Experience Manager is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in The Experience Manager Properties in The Experience Manager’s possession in connection with your use of The Experience Manager Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of The Experience Manager, its Users or the public, and all enforcement or other government officials, as The Experience Manager in its sole discretion believes to be necessary or appropriate.
10.2 No Subsequent Registration. If your registration(s) with or ability to access The Experience Manager Properties is discontinued by The Experience Manager due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access The Experience Manager Properties through the use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those The Experience Manager Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, The Experience Manager reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11. International Users.
The Experience Manager Properties can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that The Experience Manager intends to announce such services or content in your country. The Experience Manager Properties are controlled and offered by The Experience Manager from its facilities in the United States of America. The Experience makes no representations that The Experience Manager Properties are appropriate or available for use in other locations. Those who access or use The Experience Manager Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
12. Dispute Resolution.
Please read the following arbitration agreement in this Section (“ Arbitration Agreement”) carefully. It requires you to arbitrate disputes with The Experience Manager and limits the manner in which you can seek relief from us.
12.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to the Services, or to any aspect of your relationship with The Experience Manager, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or The Experience Manager may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
12.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Arbitration Agent - 2190 E. 11th Avenue #321, Denver, Colorado 80206. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, The Experience Manager will pay them for you. In addition, The Experience Manager will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and The Experience Manager. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4 Waiver of Jury Trial. YOU AND THE EXPERIENCE MANAGER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and The Experience Manager are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in Colorado. All other claims shall be arbitrated.
12.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 2190 E. 11th Ave. #321, Denver, CO 80206, or to firstname.lastname@example.org. Your notice must include your name and address, your username (if any), the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7 Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with The Experience Manager.
12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if The Experience Manager makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing The Experience Manager at the following address: 2190 E. 11th Ave #321, Denver, CO 80206.
13. General Provisions
13.1 Electronic Communications. The communications between you and The Experience Manager use electronic means, whether you visit The Experience Manager Properties or send The Experience Manager e-mails, or whether The Experience Manager posts notices on The Experience Manager Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from The Experience Manager in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that The Experience Manager provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
13.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without The Experience Manager’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.3 Force Majeure. The Experience Manager shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to The Experience Manager Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.5 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.6 Notice. Where The Experience Manager requires that you provide an email address, you are responsible for providing The Experience Manager with your most current email address. In the event that the last email address you provided to The Experience Manager is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, The Experience Manager’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to The Experience Manager at the following address: 2190 E. 11th Ave #321, Denver, CO 80206. Such notice shall be deemed given when received by The Experience Manager by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.7 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.8 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.9 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.