Effective February 19, 2015
A. About Us:
BY ACCESSING OUR SERVICES, YOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU SIGNED THIS AGREEMENT.
THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT, AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.
B. Our User Agreement:
1. Service Conditions. (a) You cannot use the Services unless you are at least 18 years of age, or (b) you are 13 years of age or older, obtain the consent of your parent or legal guardian to use the Services, and your parent or legal guardian agrees to be bound by this Agreement and agrees to be responsible for your use of the Services on your behalf. By accessing the Services, you represent and warrant to us that: (i) either subsection (a) or (b) above is true; (ii) you have the right, authority and capacity to agree to, and abide by this Agreement; and (iii) you shall not use any rights granted hereunder for any unlawful purpose or for any purpose which violates this Agreement, as determined by us.
2. Grant of License. This Agreement provides you with a personal, revocable, non-exclusive, non-assignable, non-transferable, limited and temporary license to access and use the Services. We shall be entitled to terminate, restrict, or suspend this license granted to you under this Agreement with immediate effect and without notice, including removing your ability to access or use the Services, for any reason or no reason, as determined by us.
3. Mobile Devices. If you are accessing the Services via a mobile device or tablet which is owned or controlled by you (a “Device”) then, subject to your compliance with this Agreement and our Policies, the license granted hereunder allows you to access the Services using your Device. You understand and agree that use of the Services via your Device may result in data or other charges from your mobile communication service provider and you expressly release, indemnify, hold harmless, and defend us from any and all liability relating to any such charges and/or your Device.
(a) To use certain aspects of the Services, you must create an Account. In connection with the Services, you agree to provide true, accurate, current and complete information as prompted by our registration forms, and to maintain and promptly update the information you provide to us in order to keep your information true, accurate, current and complete. It is your obligation to maintain and control passwords to your Account. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES AND/OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You agree to immediately notify us of any unauthorized uses of your username and password and/or any other breaches of security. There is no assumption by us of your responsibility to notify your local law enforcement agency of any identity theft. You agree we will not be liable for any loss or damages caused by your failure to comply with your security obligations.
(a) By Us.
(i) All Posts and Content on the Services, or obtained from a Linked Site (defined below) are provided to you ‘AS IS’, ‘AS AVAILABLE’ and ‘WITH ALL FAULTS’. MBA provides the Services for informational and reference purposes only. OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY CONTENT DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, LEGAL ADVICE. MBA is not a law firm or an attorney. We encourage you to seek the advice of an attorney who practices in the area of regulatory compliance should you require legal advice. We expressly disclaim all liability related to the accuracy or reliability of any opinion, advice, or Content on the Services or reliance on any of the aforementioned. The Content and other information published through the Services may include inaccuracies or typographical errors. We use reasonable efforts to provide you with useful Content, however, we do not warrant or represent that the Content available through the Services is complete or up-to-date.
(ii) Forms. As part of our Services, the User Data may contain predetermined forms and related agreements for use in connection with Contract Services (defined below) (collectively, “Forms”). You understand and agree the Forms available through our Services are standard forms only, modeled after examples for the broadest use. THE FORMS HAVE NOT BEEN PREPARED BY AN ATTORNEY OR OTHER LEGAL PROFESSIONAL AND ARE NOT TO BE CONSIDERED LEGAL ADVICE. You understand and agree that the available Forms and the available provisions of the Forms do not represent all of the possible options, provisions, clauses, or structures of a campaign document that may otherwise be available to a User if that User were to retain an attorney to prepare documents in connection with the Services and/or Contract Services. WE ARE NOT ATTORNEYS. WE ADVISE YOU TO ENGAGE AN ATTORNEY TO REVIEW ANY FORMS PRIOR TO USING ANY FORMS IN CONNECTION WITH THE SERVICES AND/OR THE CONTRACT SERVICES. You are solely responsible for determining if any Forms available through our Services are suitable for your needs. If you determine that any Forms available through our Services are not suitable for your needs, do not use any such Forms.
(iii) User Data. Except as otherwise provided in this Agreement, your license to use the Services includes the right to download and temporarily store portions of Content provided to you by way of your Account (“User Data”) to a storage Device under your exclusive control solely (A) to use and display internally such User Data in connection with work product created by you and your organization, and (B) to quote and excerpt from such User Data (appropriately cited and credited) by electronic cutting and pasting or other means in work product created by a User. A User may also create printouts of Data for internal use and for distribution to third parties if such third parties agree not to further distribute the printouts. A User may not copy, download, store, publish, transmit, transfer, sell or otherwise use Content, or any portion of the Content, in any form or by any means, except (X) as expressly permitted by this Agreement, (Y) with MBA’s prior written permission, or (Z) if not expressly prohibited by this Agreement, as allowed under the fair use provision of the Copyright Act (17 U.S.C. § 107). Each User agrees that User Data shall not be stored or used in an archival database or other searchable database except as expressly permitted by this Agreement or as quoted in User’s work product. Further, each User agrees that such User shall not sell, license, or distribute Content (including printouts and User Data) to third parties or use Data as a component of or as a basis for any material offered for sale, license, or distribution.
(b) Linked Sites.
(ii) Third Party Products and Services. When you use the Services to purchase or use products or services from a Linked Site, you are purchasing that product or service directly from the third party Linked Site. If you purchase products or services from a Linked Site, your order is placed with, filled by, and shipped by that third party Linked Site. We have no involvement in any shipment, fulfillment, returns, or refunds associated with any products or services that you purchase from or view in connection with a Linked Site or third party. You understand that you must contact the third party Linked Site directly for inquiries related to any interactions you may have with Linked Sites, including but not limited to: returns, shipping, customer service, refunds, and general information. By using the Services, you expressly represent and warrant that you will abide by and will not violate any policies, rules, terms, or conditions of that third party Linked Site.
(c) Posted by You.
(i) You are solely responsible for and retain all rights in the Content that you create using the Services or Post on the Website (on our blog or otherwise) or transmit to us or other Users (“User Content”). You agree that you will not: Post User Content containing obscenities, as determined by us; Post User Content of people who have not given permission for their images to be uploaded to the Services; Post User Content that infringes on the intellectual property rights of others; Post any User Content which violates any provision of the use restrictions in Section 12; and/or Post any objectionable User Content as determined by us in our sole discretion. WE ARE NOT RESPONSIBLE FOR ANOTHER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST USING OUR SERVICES.
(ii) You will retain ownership of your User Content. However, you also agree that by Posting Content anywhere within, on, or using the Services, you automatically grant to us an irrevocable, perpetual, non-exclusive, paid-up, royalty free license to use, copy, sell, and distribute such Content in any way and to prepare derivative or collaborative works of such Content of any kind, as well as authorize us to sublicense any of the aforementioned Content, each as determined by us. You further agree that we have the right to promote any Content through Social Media Profiles, as determined by us in our sole discretion. You agree that any User Content you Post is not being disclosed in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type. To the extent any ‘moral rights’, ‘ancillary rights’, or similar rights in or to the User Content exists and are not exclusively owned by us and to the extent you are able to do so under applicable law, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce any such rights from any others who may possess such rights. Without limiting the scope of the license granted to us by you hereunder or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to User Content, and to the extent allowed by applicable law, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to User Content you Post on the Website or to us or other Users.
(iii) You represent and warrant that you own or otherwise possess all necessary rights with respect to your User Content, and that your User Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that your User Content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, as determined by us.
(iv) You agree that we may but are not obligated to: filter any Content including but not limited to, deleting or replacing expletives or other harmful or offensive language; refuse to display any Content; remove Content from the Services for any reason or no reason, as determined by us; and/or disclose any Content and the circumstances surrounding the use thereof, to any third party for any reason or no reason, as determined by us. We are not responsible for, and will have no liability for, the removal or non-removal of any Content from the Services.
(v) You agree and understand that you may be held legally responsible for damages suffered by other Users or third parties as the result of your remarks, information, feedback or other Content Posted on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, MBA is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other Content posted or made available on the Services. Further, you agree to indemnify, hold harmless, and defend us from any liability and/or damages relating to any Content Posted by you or by a third person using your Account.
(d) Posted by Users or Others. We do not endorse and are not responsible for (i) the Content provided by other Users, (ii) the accuracy or reliability of any opinion, advice, statement, or Content made through the Services, (iii) any Content provided on Linked Sites, or (iv) the capabilities or reliability of any items or service obtained from a Linked Site. There are risks involved with relying on information on the Services, and you expressly assume those risks when using the Services. Under no circumstance will we be liable for any loss or damage caused by your reliance on any Content, items, other information, or services obtained through the Services or a Linked Site.
6. Contract Services.
(a) Generally. As part of our business, we offer campaign and other campaign and administrative compliance services, as determined exclusively by us (collectively, “Contract Services”). If you engage us to perform Contract Services, we will enter a separate agreement with you (a “Master Services Agreement”). The Contract Services and the obligations and duties of MBA and you shall at all times be subject to and controlled exclusively by the Master Services Agreement. In the event of a conflict between this Agreement and any Master Services Agreement, the provisions of the Master Services Agreement shall control. This Agreement shall govern over your use of the Website and Services which are not Contract Services.
(b) Payment. If you enter a Master Services Agreement with us, we may allow you to pay amounts owed to us under the Master Services Agreement by way of the Website. In connection with any amounts paid by you, you agree: (a) to only provide valid and current payment information, and (b) that we may use the tools, software or services of our payment processors to process fees and transactions on our behalf. We are not responsible or liable for any activities or conduct of our payment processors, and you agree to hold us harmless, and expressly release us, from any and all liability arising from the conduct of our payment processor.
7. Confidentiality. Except as permitted by Section 5 and elsewhere in this Agreement, Users agrees not to use any User Data for any purpose except engage in a business relationship between you and MBA pursuant to the Master Services Agreement. Further, Users agree not to disclose any User Data to third parties or to such User’s employees, except to those employees who are required to have the information in order to engage in discussions concerning the business relationship between the User and MBA, as determined by MBA. Users shall not reverse engineer, disassemble or decompile any User Data and which are provided to a User by MBA. Users agree that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the User Data. Without limiting the foregoing, Users shall take at least those measures that each User takes to protect its own confidential information and shall have its employees, if any, who have access to User Data sign a non-use and non-disclosure agreement in content substantially similar to the provisions of this Section 7, prior to any disclosure of User Data to such employees. Users shall immediately notify MBA in the event of any unauthorized use or disclosure of the User Data. For the purposes of this Section 7 only “User Data” shall not, include any information which a User can establish (a) was publicly known and made generally available in the public domain prior to the time of disclosure to such User by MBA; (b) becomes publicly known and made generally available after disclosure to such User by MBA through no action or inaction of such User; or (c) is in the possession of such User, without confidentiality restrictions, at the time of disclosure by MBA as shown by such User’s files and records immediately prior to the time of disclosure.
8. Advertisers. With respect to any Affiliate (as defined in Section 10 below) or third party that Posts advertisements on the Website, including but not limited to by placing banners on the Website (each an “Advertiser”), Advertiser’s advertisements are subject to a separate agreement with us as well as our policies regarding advertisements (collectively, an “Ad Agreement”), which is hereby incorporated herein by reference. The rights and obligations of an Advertiser and us are established by the Ad Agreement. In the event of a conflict between the provisions of an Advertiser’s Ad Agreement and this Agreement, the provisions of the Ad Agreement shall control and the remaining provisions of this Agreement shall be supplemental and remain in effect.
10. Intellectual Property.
(a) Trademarks. MELE, BRENGARTH & ASSOCIATES LLC, MBA CONSULTING GROUP, and all other graphics, logos, page headers, button icons, scripts, service names and other Content that we use, manage or control are trademarks, registered trademarks or trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives, advertisers, licensors, licensees, successors, assigns, agents, partners, or other affiliates (collectively “Affiliates”) in the United States, other countries, or both. No one may use these trademarks or trade dress in connection with any product or service that is not our product or service without our express written permission. All other trademarks that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by us or any of our Affiliates.
(b) Copyright. Except in the case of Content under license to us, we claim a copyright, and all copyright protection afforded, under international, United States and the laws of the District of Columbia to all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other Content on the Services. The compilation of all Content on the Services is our exclusive property, and it is similarly protected. We also claim a copyright, and all copyright protection afforded, under international, United States and the laws of the District of Columbia to all material described in the trademarks section above. Your access to all information and Content located on the Services is strictly permitted through the license granted to you under this Agreement. Except for the license granted in this Agreement, all rights, title and interest in Content, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of ours and other parties. Except as permitted by this Agreement, you are prohibited from modifying, copying, distributing, displaying, publishing, selling, licensing, creating derivative works, or using any Content available on or through the Services without our prior written permission, or in the case of Content owned by a third party, without first receiving permission from the owner of that Content. You may not alter or remove any trademark, copyright or other notice from copies of the Content.
(c) Infringement Claims. We respect the intellectual property of others and ask that Users do the same. In connection with the Services, we have adopted and implemented a policy respecting intellectual property that provides for the removal of any infringing or unauthorized materials and for the termination of a User’s ability to use our Services, in appropriate circumstances, if we determine that User is infringing on the intellectual property rights of others. If you believe that a User is, through the use of the Services, unlawfully infringing by submitting unauthorized Content, and wish to have the allegedly infringing or unauthorized material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512) must be provided to our designated copyright agent (“Designated Agent”): your physical or electronic signature; identification of the works or rights that you claim to have been infringed; identification of the Content on the Services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such Content; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable Content is not authorized by the copyright or other rights owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright or other right that has allegedly been infringed or violated or that you are authorized to act on behalf of the copyright or other rights owner. Note that, pursuant to 17 U.S.C. § 512, any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our Designated Agent is:
Dunlap Bennett & Ludwig PLLC
211 Church Street, S.E.
Leesburg, Virginia 20175
11. Linking To Our Website. You are granted a limited, revocable, non-exclusive right to create a text hyperlink to the Website, provided that such link does not portray MBA or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking website does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time and for any reason or no reason, as determined by us in our sole discretion. Upon such time as we notify you that your limited right to link to the Website has been revoked by us, you agree to immediately cease using and remove any and all links to the Website which were previously created, used, or controlled by you. You may not use an MBA logo or other proprietary graphic of MBA to link to this Website without the express written permission of MBA which we may withhold in our absolute discretion. Further, you may not use, frame or utilize framing techniques to enclose any MBA trademark, logo or other proprietary information, including the images found on the Website, any text or the layout/design of any page or form contained on a page of the Website without MBA’s express written consent. Except to the extent you may link to the Website as noted above, you are not conveyed any other right or license by implication, estoppel or otherwise.
12. Use Restrictions. You may not use or plan, encourage or help others to use the Services for any purpose or in any manner that is prohibited by this Agreement or by applicable law. In using the Services, you agree at all times that you shall not: (a) infringe on the copyrights or other intellectual property rights of MBA, a User, or a third party (b) copy, distribute, or modify any part of the Services without our prior written authorization; (c) Post inappropriate, inaccurate, false, misleading, or objectionable Content to the Services, as determined by us; (d) transmit any Content which contains software viruses, or other harmful computer code, files or programs; (e) Post Content that falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present; (f) make threats or use profanity; (g) harass, stalk or intimidate other Users; (h) manipulate or exclude identifiers in order to disguise the origin of any Content; (i) disrupt the networks connected to the Services, including but not limited to by: attempting to probe, scan or test the vulnerability of the Services, attempting to breach security or authentication measures without proper authorization, or attempting to interfere with the Services or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’; (j) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (k) collect Content, personally identifying information, and/or other information from the Services, or otherwise access the Services, by using any automated means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written approval which we may withhold in our discretion; (l) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, sell, or distribute the Services; (m) rent or lease any rights in the Services in any form to any third party or make the Services available or accessible to third parties; (n) use any communications systems provided by the Services to send unsolicited or unauthorized commercial communications, including but not limited to by email, SMS, MMS, or any other means; (o) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices displayed on the Services; (p) mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or other information that you provide to us; (q) link, deep link, ‘frame’ or ‘mirror’ any part of the Services without our prior consent; or (r) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, or inappropriate purpose, or in any manner that breaches this Agreement or is otherwise objectionable, as determined by us in our sole discretion.
13. Termination, Restriction, and Suspension.
(a) Termination By You. You may cancel your Account at any time for any reason or no reason by notifying us in writing (email to firstname.lastname@example.org) is acceptable. Upon cancellation of your Account and/or of the Master Services Agreement, access to certain features of the Services may be restricted. Termination of your Account will be effective within a reasonable time after we receive notification of your desire to cancel, as determined by us.
(b) By us. We retain the right to terminate, restrict, or suspend this Agreement, your Account, and/or license to access or use the Services at any time in our absolute and sole discretion, without prior notice, for any reason or no reason, as determined by us.
14. DISCLAIMERS. IF YOU CHOOSE TO USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. OUR SERVICES AND CONTENT ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, OUR SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES MBA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MBA MAKES NO WARRANTY THAT THE WEBSITE, SERVICES, AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. MBA MAKES NO WARRANTY REGARDING THE QUALITY OF OUR SERVICES OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MBA OR THROUGH THE SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
15. Release and Waiver of Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE ALL CLAIMS, ACTIONS, DEMANDS, SUITS, OR PROCEEDINGS (“CLAIMS”) AGAINST US AND OUR AFFILIATES, INCLUDING ANY AND ALL LIABILITY FOR DAMAGES (ACTUAL AND OR CONSEQUENTIAL), COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS’ FEES) OF EVERY KIND AND NATURE, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, ARISING FROM OR IN ANY WAY RELATED TO: (A) THE SERVICES, (B) THIS AGREEMENT, (C) YOUR DEVICE, (D) CONTENT AVAILABLE ON OUR SERVICES, (E) ANY INACCURACY, UNTIMELINESS OR INCOMPLETENESS OF A USER’S REPRESENTATIONS OR WARRANTIES, AND/OR (F) ANY INACCURACY, UNTIMELINESS, OR INCOMPLETENESS OF ANY AND ALL INFORMATION AND/OR CONTENT OBTAINED OR ACCESSED BY OR THROUGH THE SERVICES. FURTHER, IF YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “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.” YOU UNDERSTAND THAT ANY FACT RELATING TO ANY MATTER COVERED BY THIS AGREEMENT MAY BE FOUND TO BE OTHER THAN NOW BELIEVED TO BE TRUE, AND ACCEPT AND ASSUME THE RISK OF SUCH POSSIBLE DIFFERENCES IN FACT. IN ADDITION, YOU EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS WHICH YOU MAY HAVE HAD UNDER ANY OTHER STATE OR FEDERAL STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, TO THE FULLEST EXTENT PERMITTED BY LAW.
16. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, OR EMOTIONAL DISTRESS RELATED TO OR RESULTING FROM ANY ASPECT OF OUR SERVICES, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF (A) THE SERVICES, (B) THIS AGREEMENT, (C) CONTENT, (D) OR ANY OTHER ASPECT OF OUR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages (regardless of whether the Claim for such damages is based in contract, tort, strict liability, or otherwise) exceed one hundred twenty-five dollars ($125). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
17. Dispute Resolution.
(a) In the event that any dispute arises with respect to the Services, this Agreement, or any of our Policies, upon our election in our sole discretion, such dispute shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association, in the District of Columbia, and at our option, such arbitration shall be before a single neutral arbitrator selected in our sole and absolute discretion. In the event we elect not to require that a dispute arising with respect to the Services, this Agreement, or any of our Policies be submitted to binding arbitration as described above, any such dispute shall nevertheless be litigated in the state courts located in the District of Columbia or in the U.S. District Court for the District of Columbia, as the case may be. You shall be liable for and shall reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises out of, under, or relating to this Agreement or any of our Policies, or your use of the Services. By using the Services, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection in the state courts located in the District of Columbia or in the U.S. District Court for the District of Columbia as the case may be, whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
(c) You agree that irreparable harm to us would occur in the event that any of the provisions of this Agreement, including but not limited to the provisions of Sections 5, 7, 10, and 12 were not performed fully by you or were otherwise breached by you, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that this Agreement are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby acknowledged that, notwithstanding any provision of this Section 17, we shall be entitled to petition the courts listed in Section 17(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform this Agreement by you, without positing bond or other security, and to enforce specifically such provisions of this Agreement.
(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any above-mentioned dispute to arbitration or to the above class action wavier according to this Section 17, the parties agree to litigate any such dispute according to Section 17(a) above and to replace any other such terms or provisions of Section 17(a) or Section 17(b) with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 17 shall be enforceable as so modified. In any event, the remainder of this Agreement will continue to apply.
18. Indemnification. You agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: your use, misuse, or inability to use the Services; any infringement of a third party’s rights; your Device; a breach of representation or warranty; your User Content; disclosure or use of Content by you; alterations of, loss of, or unauthorized access to any information sent or received or not sent or received by you or us; any defamatory, offensive, fraudulent, or illegal use of the Services by you; any accidental or improper disclosure of information; and any violation by you of this Agreement or any of our other Policies.
19. Survival. Notwithstanding anything herein to the contrary, the provisions of Sections 3 through 10, 13 through 23, and 25 through 27 of this Agreement, as well as any provision of this Agreement which in accordance with its terms is intended to survive the termination of this Agreement, your Account, or your license to use or access the Services shall survive any such termination.
20. Notification. By using the Services, you agree that we may provide you with any notices or other communications electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. We will use best efforts to honor a User’s request to opt out of promotional messages, but under no circumstances will we be liability for Posting any Content to Users.
21. Severability; No Waiver. The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of this Agreement. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of this Agreement shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of this Agreement, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in this Agreement is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
22. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.
23. Our Relationship with You. With respect to you, we are an independent contractor only. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, you and MBA to be treated as partners, joint venturers, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other.
24. Third Parties. From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services to you, as determined by us.
25. Entire Agreement; Modification. This Agreement together with our Polices any other document referenced herein, constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we may amend, modify, or alter this Agreement and/or our Polices at any time in our sole discretion. We will notify you about changes to this Agreement by placing the updated Agreement on the Website. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to this Agreement.
26. Headings. Headings in this Agreement are for convenience only, and shall not govern the meaning or interpretation of any provision of this Agreement. Further, whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neutral, and each word will include the singular form, plural form, and other conjugations of that word.
28. Compliance. You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Service. The Services are designed and targeted to Users who reside in the United States. We make no representation that the Services are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services you certify that you meet the age and other eligibility requirements for use of the Services. Those who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law. Further, you agree to comply with all laws, restrictions and regulations relating to the export of items, Content, and the Services. For purposes of the U.S. Export Administration Act (“Export Laws”), you state you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”)) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving the Services and Content.
29. Feedback. We value your comments and opinions. If you have questions, comments or a complaint about this Agreement, you may send a written notice to us at: email@example.com or at 611 Pennsylvania Ave SE #143, Washington, DC 20003-4303.