These TERMS OF USE (this “Agreement”) concern the website (together with its pages and features, the “Site”) operated, hosted, and/or published by Milltown Excavation & Landscape Construction (“Company”) and all associated services provided on, through, or in relation to the Site (the “Services”). This Agreement is made and entered into by and between you and any person helping you access or use the Site or the Services, whether as a guest or a registered user (collectively, “you” or “your”), on the one side, and Company on the other side. You and Company are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties”.

Please read this Agreement carefully before accessing or using the Site and/or the Services because it constitutes a legally binding contract between you and Company. This includes the “Dispute Resolution” clause contained in this Agreement, which provides for binding arbitration and waivers of jury trials and class actions.

You are automatically accepting and agreeing to the most recent version of this Agreement whenever you access or use the Site and/or the Services; and your continuing access or use of any of the foregoing reaffirms your acceptance and agreement in each instance.

If you do not accept and agree to this Agreement in its entirety, then you are strictly prohibited from accessing or using the Site and/or the Services.

Company may supplement, amend or otherwise modify this Agreement at any time, but its content is not necessarily complete or up-to-date, and any of the material on the Site may be out of date at any given time without creating an obligation on Company to update such material. Any modifications to the Site will be posted on this or another page of the Site as Company deems appropriate in its sole discretion, and such modifications shall be deemed effective as of their stated effective or modification dates. It is your responsibility to carefully review this Agreement each time you access or use the Site or the Services.

The Site and the contents on the Site are intended solely for personal, non-commercial use. You may download or copy the content of the Site and other downloadable materials displayed on the Site for your personal use only. No right, title, or interest in any such downloaded content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as expressly provided hereunder), publish, transmit, distribute, display, modify, create derivative works from, sell, or exploit in any way any of such content or the Site.

1. Eligibility

The Site is offered only to users eighteen (18) years of age or older, or otherwise the age of majority in each user’s respective jurisdiction, and who have accepted this Agreement. By accessing or using the Site or the Services, you represent and warrant to Company that you meet these eligibility requirements. You agree to comply with all applicable laws for accessing and using the Site or the Services.

 

2. Privacy

Company respects the privacy of others. Company’s policies concerning the collection and use of your personal information in connection with the Site are set forth in the Site’s Privacy Policy, which you should carefully review each time you access or use the Site or the Services.

 

3. Your Devices

Certain portions of the Site may be configured for, and Company may offer the Site through, certain computers, tablets, smart phones or other electronic devices (“Device(s)”), and this Agreement shall apply with equal force and measure to your access and use of the Site through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly access and use the Site. Company does not guarantee that the Site or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network.  If you access or use the Site through a particular Device, then you hereby acknowledge and agree that information about your use of the Site through that Device or its carrier or network (such as, by way of example only, the identity of your Device, or your Device’s carrier or network) may be communicated to Company and/or certain third parties (such as, by way of example only, your Device’s carrier or network). All or any part of the voice, message and data fees, rates, charges and taxes of your Device’s carrier or network, or another third party, may apply to your access or use of the Site. Company is not responsible for, and you further accept full responsibility for, all Device carrier and network fees, rates, charges and taxes which may apply, if any.

 

4. Ownership

The Site and all elements and derivatives of the Site (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation, and expressions), as well as all copyrights, trademarks, trade secrets, and other intellectual properties of the foregoing (including, without limitation, all associated logos, related names, products, and service names, designs, and slogans) are owned, licensed, or permissibly used by Company.  In no event shall you have or retain any rights, title, or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of Company’s or its licensors’ respective rights and remedies under applicable law. For the avoidance of doubt, this Agreement permits you to use the Site and the Services for your personal, non-commercial use only.

5. User Account

a. Registration. As explained further herein, to secure the right to access and use the registration-only pages or features of the Site, you may be required to register with and create a personal user account with Company through the Site (a “User Account”), as well as reaffirm your acceptance of and agreement to this Agreement and those additional terms, conditions and policies referenced herein, as Company may require from time-to-time. As part of the registration process, you may be required to satisfy certain conditions precedent imposed by Company (including, for example, providing additional information to Company and entering into additional agreements with Company). Unless otherwise permitted by Company in writing, you may only have one (1) non-transferable User Account.

b. User Account Activity and Information. You are responsible for all activity that occurs under your User Account and are prohibited from authorizing or allowing any third party to access or use your User Account.  Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password). You should also maintain accurate, complete, and up-to-date information in your User Account because your failure to do so may result in your inability to access, use, or receive all or any part of the Site and/or Company’s termination of this Agreement. For the sake of security, you must immediately notify Company if you suspect that a third party has gained access to or is making any use of your User Account without authorization. For the avoidance of doubt, Company has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors, and vendors to access and use, the information in your User Account to facilitate the exercise and performance of Company’s rights and obligations under this Agreement (including, without limitation, the Services), the operation of the Site, and/or any other rights, obligations, operations, products, and services related to the Site, the Services, your User Account, or the subject matter of this Agreement.

c. Indemnification in Connection with User Account. If you fail to comply with any terms or conditions of Section 5(b) above (whether intentionally or unintentionally), then you accept full responsibility for the consequences thereof (including, without limitation, any unauthorized changes to your User Account information and settings and any unauthorized access or use of your User Account); and you agree to indemnify, release, and hold harmless Company, Company’s parents, subsidiaries, and other affiliates, and their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties, and expenses (including costs and reasonable outside attorney fees) incurred by or asserted against any such indemnities, arising out of or in connection with your failure to comply with such terms or conditions.

6. Rights, Permissions, and Consents

a. License of the Site. Subject to the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, personal, freely-revocable, non-transferable, and non-sub-licensable license to access and view the various publicly displayed pages of the Site, and to view the information and content found thereon. You must not access or use for any commercial purposes any part of the Site or any services or materials (including, without limitation, the Services) available on or through the Site. Your unauthorized use of the Site or any breach by you of this Agreement will automatically terminate this license.

b. License of User Materials. All names, information, statements, communications, artwork, and any other content that you submit to or publish on, through, or in relation to the Site, including those which you submit to or publish on any online social media account (e.g., Facebook, Twitter, Instagram) that you own and link or otherwise associate with the Site, if any and as applicable, are hereinafter defined as the “User Materials”. You hereby grant Company an irrevocable, non-exclusive, royalty-free, fully-paid,  universe-wide license for Company to host, store, reproduce, transmit, distribute, communicate, publish, publicly display, archive, and otherwise use all or any part of such User Materials and any elements and derivatives thereof in any language, manner, medium, or form, whether now known or hereinafter devised, as Company sees fit in its sole discretion (including, without limitation, on or through Company’s blog hosted on the Site). For the avoidance of doubt, the foregoing is not intended to conflict with any provision of the Site’s Privacy Policy.

c. Reservation of Rights. Nothing in this Agreement restricts or limits Company’s rights, title, or interests in or to the Site, the Services, the User Materials, or any elements or derivatives of the foregoing.

d. Warnings; Disclaimers. Please note that the User Materials might become the subject of public disclosure. Thus, Company is not responsible for, and expressly disclaims any liability arising from or in connection with, its use of any User Materials in accordance with the terms and conditions of this Agreement. For the avoidance of doubt, the foregoing is not intended to conflict with any provision of the Site’s Privacy Policy.

7. Suspension or Termination of Service; Disclaimer

Company has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Site. Company shall not be liable to you or any third party for any loss or damage that is caused by or arises from or in connection with any such suspension or termination (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service, or loss of content).

 

8. Transactions

a. Products and Services. Company or its affiliates or licensees might offer, sell, license, or otherwise make available various products or services (which may include Company’s own products and services or the products and services of third parties) on, through, or in relation to the Site, some of which might only be made available to you upon completion and submission of an online form or other instructions provided to you by Company or which may be available exclusively online or in limited quantities on or through the Site. Company has the right to refuse its products and services to you or to any geographic region or jurisdiction, including if it suspects that you are in any way involved in fraudulent or illegal activity.

b. Additional Terms. Any purchase through the Site or other transaction for the sale of goods conducted on, through, or in relation to the Site will be governed by the terms and conditions of a sales agreement to be entered into by you and Company in relation to that  transaction. Additional terms and conditions may also apply to specific portions, services, or features of the Site. All such sales agreements and additional terms and conditions are hereby incorporated by reference into this Agreement.

 

9. Electronic Communications

a. Express Consent. You hereby expressly consent to Company sending or otherwise communicating with you for any purpose (including, without limitation, for advertising, telemarketing, or other marketing or promotional purposes, or for sending or notifying you about special offers, updates, newsletters or other informational purposes) via any electronic means or forms as Company deems appropriate in its sole discretion, whether through the Site, through your User Account, by personal communication, by e-mail, by automatic telephone dialing system, by telephone, by artificial or prerecorded voice, by online social media, by text message (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) or by other electronic media means or forms. By giving such consent, you agree that no such communication shall violate the CAN-SPAM Act, the Telephone Consumer Protection Act, or any other applicable laws, rules, or regulations. Voice, message, and data fees, rates, charges, and taxes may apply to you, and you are responsible for payment of the same. You are not required to grant the foregoing consent as a condition for the purchase or license of any Company products or services.

b. Email Opt-Out. You may opt-out of receiving any electronic messages from Company as described in Section 9(a) above at any time by any reasonable means, including, without limitation and by way of example, by sending an e-mail to info@milltownlandscapes.com with a subject line of “Opt-Out of Electronic Communications”. You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site and/or your ability to receive certain messages or notifications from Company.

10. Prohibited Activities

You shall not engage in any of the following activities at any time with respect to the Site:  (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy, or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Company or its licensors with respect to the Site); (c) the reproduction of the Site or any communications, information or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by Company herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening, or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer, or randomly generated content; (g) supplying or publishing any information or statement on, through, or in relation to the Site that is false, misleading, deceptive, or incorrect; (h) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers, or applications; (i) the systematic retrieval or copying of any information or content found on, through, or in relation to the Site or its servers to directly or indirectly create or compile, in whole or in part, a collection, compilation, database, or directory; (j) the use of any software, program, process, device, application, or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Site or its servers; (k) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through, or in relation to the Site or its servers; (l) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Site or its servers; (m) any act that gains or attempts to gain unauthorized access to computer systems, networks, information, or materials on, through, or in relation to the Site or its servers; or (n) any other act that Company becomes aware of and believes in good faith is improper, illegal, or harmful to the Site or its servers, or any person, entity, or property.

 

11. Links to Other Sites, Apps, Networks, Platforms and Servers

a. Linked Technologies. The Site or any communications sent on, through, or as a function of the Site may contain links to third-party websites, networks, platforms, servers, resources, listings, applications, or communications, and, similarly, third-party websites, networks, platforms, servers, resources, listings applications, or communications may contain links to the Site (collectively, “Linked Technologies”). The Linked Technologies are not under the control of Company or the Site, and any such communications contain the outgoing links as a convenience to you, if for any purpose.

b. Disclaimer About Linked Technologies. Company is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information, and illegal content). Company does not make, nor has Company made, any representations or warranties (whether express, implied, or otherwise) concerning the terms of use or service, privacy policies, agreements, information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies; nor shall the fact that the Site may link to or from any Linked Technologies constitute an affiliation with, association with, or endorsement of such Linked Technologies or any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from such Linked Technologies. If you decide to access any Linked Technologies, then you do so at your own risk.

 

12. Take Down

Company reserves the right, but not the obligation, to take down or otherwise exclude from the Site, without notice or recourse, any communications, statements, names, photographs, information, and/or content made or submitted by you or others on or through the Site that Company believes, at any time and in its sole discretion, to be infringing or otherwise in violation of the proprietary rights, the right of privacy, or the right of publicity of any person or entity; defamatory, disparaging, or embarrassing of or towards any person or entity; profane, indecent or obscene; derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; false, misleading or deceptive; or otherwise illegal or something that Company considers unsuitable for the Site or its users.

13. Copyright Infringement

Company respects the copyrights of others and prohibits users from uploading, posting, distributing, or otherwise transmitting any materials on or through the Site, or from engaging in any activities on or through the Site, which violate the copyrights of others. It is the policy of Company to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances, the right of any user (which may include, without limitation, you) to access and use the Site who is a repeat copyright infringer. If Company becomes aware that a user (which may also include, without limitation, you) is a repeat copyright infringer, then it is the policy of Company to take reasonable steps within its power to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances, the right of that user to access and use the Site. The following procedures shall apply in the event that you or another person or entity allege that the reproduction, public performance, public display, digital transmission or other use of a work found on the Site infringes your copyright, the copyright of said person or entity or any other intellectual property right owned by you or said person or entity. These procedures are intended to comply with 17 U.S.C. § 512 and any other applicable laws. By visiting, accessing, registering with, and/or or using the Site or the Services, as applicable, you are automatically agreeing to comply with the following procedures.

a. Takedown Notice (Materials). To report any materials on the Site that violate the copyrights of others, you must send Company a written communication that includes substantially the following:

i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;

iv. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

v. A statement that the complaining party has 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; and

vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

b. Takedown Notice (Information Location Tools). To report any information location tools (e.g., hyperlinks) on the Site that refer or link users to an online location containing infringing material or infringing activity, you must send Company a written communication that includes substantially the following:

i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

iii. Identification of the reference or link to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link;

iv. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

v. A statement that the complaining party has 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; and

vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

c. Counter-Notice. If you believe that any material you have uploaded, posted, distributed, or otherwise transmitted on the Site has been removed by mistake or misidentification, and if you have the right to upload, post, distribute, or otherwise transmit the material at issue, then you may send Company a written communication that includes substantially the following:

i. A physical or electronic signature of the user;

ii. Identification 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;

iii. A statement under penalty of perjury that the user has 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; and

iv. The user’s name, address, and telephone number, and a statement that the user consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the user’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the user will accept service of process from the person who provided notification under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.

14. User Representations, Warranties, and Covenants

You represent, warrant and covenant to Company that: (a) you are a natural person and of eighteen (18) years of age or older, or otherwise the age of majority in your jurisdiction; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that, by accepting this Agreement, you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state, or local laws which may concern the Site, its respective servers, or any information, communications, or content found on or through them; (g) you are the exclusive owner of all rights, title, and interests in and to the User Materials (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity, and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials to allow for your performance and grant of rights hereunder; (h) the User Materials are wholly original to you; (i) the User Materials do not and will not infringe upon or otherwise violate the proprietary, publicity, or privacy rights of any person or entity; (j) the User Materials do not and will not defame, disparage, embarrass, or disclose confidential, private, or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials is or will be, or contains or will contain, links to material that is profane, indecent, obscene, threatening, abusive, illegal, false, misleading or any form of spam, malware, virus, bug, bot, spyware, or other malicious or tracking technology; (l) Company is not required to seek the permission of or compensate any third party to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement, or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to Company in connection with your access or use of the Site and/or the Services is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties.

 

15. Disclaimers and Limitations

a. General Disclaimer. Your access or use of the Site or any products or services made available to you on, through, or in relation to the Site (including, without limitation, the Services) in any way is done at your own risk. The Site, those products and services (including, without limitation, the Services), the success or performance of the Site or those products and services (including, without limitation, the Services) and all information, communications, content and features offered, marketed, provided, licensed or made available on, through, or in relation to the Site or those products and services (including, without limitation, the Services) are provided to you on an “as is”, “where is”, “as available”, and “with all faults” basis and without any warranty.  Company does not make, nor has Company made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written, or express or implied) to you with respect to the Site, any of those products and services (including, without limitation, the Services), any such information, communications, content, and features or their success, performance, functionality, quality, completeness, accuracy, reliability, marketability, or safety. Company expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, performance, functionality, quality, completeness, accuracy, reliability, and safety) and warranties arising from conduct, course of dealing, custom and usage in trade with respect to the Site, those products and services (including, without limitation, the Services), any such information, communications, content or features and their success, performance, functionality, quality, completeness, accuracy, reliability, marketability, and safety.  Company does not make, nor has Company made, any affirmation of fact, promise or warranty (whether express, implied, or otherwise) relating to the Site, those products and services (including, without limitation, the Services), or any such information, communications, content, or features or their success, performance, functionality, quality, completeness, accuracy, reliability, marketability, or safety that extends beyond the face of this Agreement or that has become any basis of any bargain.

b. Disclaimer About System Delays. You understand and acknowledge that the Site may be subject to limitations, delays and other problems inherent in the use of third-party communication networks and facilities that are outside of Company’s control. Accordingly, Company shall not be responsible for, and expressly disclaims, any delays, failures, losses, injuries, liabilities or damages associated with the Site that result from any system delays, downtimes, interruptions, or other failures of, or problems with, the Site that are outside of Company’s control (including, without limitation, scheduled maintenance or network failure).

c. Disclaimer About Certain Information, Communications and Content. Any opinions, advice, reviews, statements, offers, or other information, communications or content found on, through or in relation to Company, the Site, the Services, or any third-party providers (including, without limitation, online forums, other websites, advertisements, and social media pages) are those of their respective authors, and not necessarily those of Company; thus, they should not necessarily be relied upon.  Such authors are solely responsible for the accuracy of such information, communications, or content. Company does not guarantee, adopt or endorse the accuracy, completeness, reliability, or usefulness of any such information, communications, or content, even if Company is the author.  Company is not responsible for the accuracy, completeness, reliability or usefulness of any such information, communications, or content.  Under no circumstances shall Company be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information, communications, or content.

d. Limitation of Liability. In no event shall Company, any of Company’s parents, subsidiaries, or other affiliates, or any of their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive, or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs, or repair costs) caused by or arising from or in connection with:  (i) your access or use of the Site, or your inability to access or use the Site or the Services; (ii) any products or services (including, without limitation, the Services) made available on, through, or in relation to the Site; (iii) any statements, content, or conduct of any third party on, through or in relation to the Site or any such products or services (including, without limitation, the Services); (iv) any unauthorized access to or alteration of your personal information; (v) any hacking, denial of service attacks, data security breaches or other third-party conduct that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s) or network(s); (vi) any transmission, download or infection of any software, system, program, file, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware and malware) that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), or network(s); (vii) the fact that you have relied on any information, content or communications published on, through or in relation to the Site or any such products or services (including, without limitation, the Services); or (viii) any acts, errors or omissions of any third-party providers. If you are dissatisfied with the Site or any products or services offered, licensed, or made available on, through, or in relation to the Site (including, without limitation, the Services), then your sole and exclusive remedy is to discontinue your access and use of the Site and such products and services (including, without limitation, the Services).

e. Limitation of Remedies. If Company breaches or otherwise violates this Agreement, then in no event shall you be entitled to recover any special, incidental, consequential, speculative, exemplary, or punitive damages arising out of or in relation to such breach or other violation, even if Company has been notified of the possibility of such damages.

f. No Injunctive Relief. If Company breaches or otherwise violates this Agreement, then you shall not be entitled to seek or obtain, and you do hereby waive, any type of injunctive relief against the Site and/or any products or services made available on, through, or in relation to the Site (including, without limitation, the Services) as a result of such breach or other violation. For the avoidance of doubt, the foregoing limitation on injunctive relief does not limit your ability to seek or recover any monetary remedies authorized by law in the event of any such breach or other violation (except for those which are otherwise expressly precluded by this Agreement).

g. Consumer Protections. The disclaimers and limitations set forth in this Section 15 are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.

16. General Release of Claims

You hereby release and hold harmless Company, Company’s parents, subsidiaries, and other affiliates, and their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, and licensees from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, unpaid benefits, unpaid wages, overtime, discrimination, personal injury, property damage, negligence, and/or any other legal theory arising from or in connection with the Site, the products or services made available on, through, or in relation to the Site (including, without limitation, the Services), and/or the rights and privileges granted or conveyed by you under this Agreement (including, without limitation, those rights and privileges relating to the User Materials and/or any elements, derivatives, or marketing of the foregoing).  Further, you waive your right to, and in no event shall you seek to, (a) enjoin Company, any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees or (b) exercise any of the rights or privileges granted or conveyed by you under this Agreement (including, without limitation, the User Materials).

You also hereby waive any rights you may have under Section 1542 of the California Civil Code and any other statute or common law principle of similar effect, which provides:

“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party”.

 

17. Indemnification

You hereby agree to indemnify, release, and hold harmless Company, Company’s parents, subsidiaries, and other affiliates, and their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties, and expenses (including costs and reasonable outside attorney fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with (a) your acts, errors, or omissions, (b) your use of the Site or any products or services made available on, through, or in relation to the Site (including, without limitation, the Services) in any manner contrary to the terms and conditions of this Agreement, (c) your violation of the rights of or other injury to any third party, and/or (d) your breach of all or any part of this Agreement.

 

18. Force Majeure

Company shall not be liable for delays in performance caused by any act of God, fire or other casualty, accident, strike, shortage of labor or materials, governmental action, industrial disturbance, pandemic, epidemic, or any other cause beyond Company’s reasonable control, and the time for Company’s performance shall be extended by the period of any such delay. Company reserves the right to apportion its production among its customers as it may determine.

19. Termination; Survival

If this Agreement is terminated for any or no reason, then all rights granted to you under this Agreement shall automatically revert back to Company, and the following shall survive in perpetuity:  (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to or accrued in favor of Company, any of Company’s parents, subsidiaries, or other affiliates, or any of their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, or licensees as of the date of this Agreement’s termination; (c) all payments which accrued as of the date of termination; (d) all disclaimers, limitations of liability and limitations of remedies; and (e) all representations, warranties, covenants, certifications, releases, indemnifications, and promises made by you under this Agreement.

 

20. Governing Law

This Agreement, the additional terms, conditions, and policies referenced herein (including the Site’s Privacy Policy), your access or use of the Site or any Services, your registration with the Site, any transactions made on, through, or in relation to the Site, any products or services purchased on, through, or in relation to the Site (including, without limitation, the Services), the Parties’ relationship, and all disputes, controversies, and claims arising from or in connection with any of the foregoing (whether grounded in contract, tort, statute, law, or equity) is governed by the laws of the State of Texas in the United States of America and the applicable federal laws of the United States of America, regardless of its place of execution, its place of performance, and any conflicts of law analysis.

 

21. Dispute Resolution

a. Binding Arbitration; Waiver.  Each Party hereby irrevocably submits all disputes, controversies and claims arising from or concerning this Agreement, any additional terms, conditions or policies referenced in this Agreement (including the Site’s Privacy Policy), your access or use of the Site or the Services, any transactions made on, through, or in relation to the Site, any products or services purchased on, through, or in relation to the Site (including, without limitation, the Services), and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity) (collectively, the “Dispute(s)”) to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. (a/k/a JAMS) or its successor (“JAMS”) for the resolution thereof, and such arbitration shall be the sole and exclusive method for resolving the Disputes.  The arbitration shall be binding, final, and confidential. Each Party acknowledges and agrees that he/she/it is waiving the right to a trial by jury or to participate as the member of a class in any purported class action proceeding.

b. Arbitration Rules. The arbitration shall be conducted before a single arbitrator under the then-current JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as supplemented by the Federal Rules of Civil Procedure and the Federal Rules of Evidence if and where applicable as a gap-filler.  If there is any conflict between a provision of the JAMS Rules, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or this Agreement, then the conflicting provision of this Agreement shall control and govern over the JAMS Rules, the Federal Rules of Civil Procedure and the Federal Rules of Evidence, and the JAMS Rules shall control and govern over the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The construction, interpretation, and enforcement of this Section 21 is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

c. Arbitration Process, Location, and Procedures. The Party initiating the arbitration proceeding shall serve a written notice of arbitration on the other Party in accordance with the JAMS Rules. The arbitration shall be held in Travis County, Texas, United States of America.  The arbitration shall be conducted in the English language.  The arbitrator shall be selected in accordance with the JAMS Rules, unless otherwise agreed to by the parties to the arbitration.  All issues or questions concerning either the scope of this arbitration clause or the arbitrability of any of the Disputes shall be referred to and finally decided by the arbitrator.  The arbitrator may construe or interpret, but shall not vary or ignore, the terms and conditions of this Agreement and shall be bound by applicable law.

d. Arbitration Decisions and Awards. The arbitrator shall render a written final decision on the subject Dispute as soon as practicable and, in any event, not more than forty-five (45) calendar days after the close of evidence and briefing. The arbitrator’s decision shall be written, shall be in accordance with applicable law, and shall be supported by written findings of fact and conclusions of law setting forth the basis for his/her decision. The arbitrator shall have no authority to award punitive, exemplary, or consequential damages, unless such an award is authorized by applicable law. The arbitrator shall have the authority to award attorney fees and expenses if such an award is permitted under this Agreement or applicable law. Subject to any applicable rights of appeal, the final decision of the arbitrator shall be binding and conclusive upon all of the Parties who have been served with proper written notice of the arbitration proceeding as required by this Section 21. Judgment on any award rendered by the arbitrator may be confirmed in any state or federal court having jurisdiction thereof that is located in the State of Texas, United States of America, and may be entered in and enforced by any domestic, foreign, or international court having appropriate subject matter jurisdiction.  Any decision, judgment, ruling, finding, award, or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder shall be kept confidential by the Parties, and any court order to enforce the decision, judgment, ruling, finding, award, or other determination of the arbitrator shall be filed under seal.

e. Arbitration Fees and Expenses. JAMS’s administrative and filing fees, the arbitrator’s fees and expenses and all other fees and expenses charged by JAMS and/or the arbitrator to administer or conduct the arbitration shall be shared equally among all parties to the arbitration; provided, that the prevailing party of the arbitration may recover an award of its share of such fees and expenses if such an award is permitted under this Agreement or applicable law.

f. Litigation; Waiver. In the event a particular Dispute is not subject to arbitration (whether by decision of an arbitrator with binding authority, or otherwise according to this Agreement or applicable law), each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts of Travis County, Texas, United States of America and the United States federal courts in the Western District of Texas, Austin Division, for the litigation of said Dispute, and covenant and agree that neither of the foregoing is an inconvenient venue or forum.

g. Waiver of Jury Trial and Class Action. Regardless of whether a particular dispute is subject to arbitration or litigation, and to the fullest extent permitted by law, each Party does hereby waive his/her/its right to a trial by jury, to participate as the member of a class in any purported class action or other proceeding, or to name unnamed members in any purported class action or other proceeding.