Please read the following Terms carefully before using any of SecondServing
LLC’s and its affiliates’ (collectively, “SecondServing”, “our” or “we”) web sites,
including, but not limited to, the SecondServing web site and any communications
features, online features, services and/or programs offered by SecondServing and/or
a customer or user of SecondServing’s web sites and/or services (collectively, the
“Web Site”). The Terms apply only to the Web Site implemented to and for users in
the United States of America, and shall not be applicable to users in other countries.
By accessing or using the Web Site, you agree to the following Terms. You
should review these Terms regularly as they may change at any time at the sole discretion
of SecondServing. If you do not agree to any portion of these Terms, you should
not access or otherwise use the Web Site. “Content” refers to any text, materials,
documents, images, graphics, logos, design, audio, video and any other information
provided from or on, uploaded to and/or downloaded from the Web Site, other than
User Content, which is discussed in Paragraph 8.
We will make an effort to update this web page with any changes to these Terms and/or
to the services described in these Terms and you are encouraged to review these
Terms frequently (the date of the most recent revision to these Terms appears at
the end of these Terms). By your continued use of the Web Site after changes are
posted, you will be deemed to have accepted such changes.
1. CONVENIENCE AND INFORMATION ONLY; ACCEPTANCE OF TERMS. By merely
providing access to the Web Site, SecondServing does not warrant or represent that:
(a) the Content and/or the User Content is accurate, complete, up-to-date or current;
(b) SecondServing has any obligation to update any Content and/or User Content;
(c) the Content and the User Content is free from technical inaccuracies or typographical
errors; (d) that the Content and/or User Content does not infringe on the intellectual
property rights of any third party; (e) that the Content and/or the User Content
is free from changes caused by a third party; (f) your access to the Web Site will
be free from interruptions, errors, computer viruses or other harmful components;
(g) any information obtained in response to questions asked through, or postings
made on, the Web Site is accurate or complete; and/or (h) any product or service
that you purchase from a third party through the Web Site will be as described,
meet your expectations or be provided to you at all.
You affirm that you are 18 years of age or older and fully able and competent to
enter into the terms, conditions, obligations, affirmations, representations, and
warranties set forth in these Terms, and to abide by and comply with these Terms.
In any case, you affirm that you are over the age of 13, as
THE WEB SITE IS
NOT INTENDED FOR CHILDREN UNDER 13 YEARS OF AGE. Your registration
for, and/or use of, the Web Site constitutes your representation and warranty that:
(a) you satisfy these eligibility requirements, and (b) you have the right, authority
and capacity to abide by all of the Terms.
2. SITE USE AND CONTENT. You may view, copy or print pages from
the Web Site solely for personal and non-commercial purposes. Except solely in connection
with your authorized participation in the services offered by SecondServing, you
may not otherwise use, modify, copy, print, display, reproduce, distribute or publish
any information from the Web Site without the express, prior, written consent of
SecondServing. At any time, we may, without further notice, make changes to the
Web Site, to these Terms and/or to the services described in these Terms. You are
prohibited from accessing any portion of the Web Site for which you have not been
granted proper access and permission.
3. USER ACCOUNT, PASSWORD AND SECURITY.
(a) USER ACCOUNT. You will be required to create an account (“User
Account”) through the Web Site and your use of the account shall at all times be
governed by these Terms, as they may be amended from time to time. Your User Account
is at all times the property of SecondServing. We reserve the right to monitor your
use of your User Account for any or no purpose. SecondServing shall have sole discretion
to disclose and share the information that you provide as part of your User Account,
as well as all communication through and information submitted to or through the
Web Site, subject to the terms of the Web Site Privacy Policy in accordance with
paragraph 6 herein.
(b) ACCURATE INFORMATION. In creating and using your User Account,
you agree to: (i) provide true, accurate, complete and current information about
yourself and/or your business entity on any registration form required (such information
being the “Registration Data”); and (ii) maintain and promptly update the Registration
Data to keep it true, accurate, current and complete. If you provide any information
that is untrue, inaccurate, not current or incomplete, or SecondServing has reasonable
grounds to suspect that such information is untrue, inaccurate, not current or incomplete,
SecondServing shall have the right to suspend or terminate your User Account and
refuse any and all current or future use of your User Account.
(c) SECURITY OF YOUR USER ACCOUNT. We use reasonable precautions
to protect the privacy of your user name (“UserID”), password and User Account information
by utilizing a Secure Socket Layer (“SSL”) connection. Accordingly, your UserID,
password and User Account information are encrypted using an SSL connection and
are not expected to be read in an intelligible form as they travel to the Web Site.
You, however, are ultimately responsible for protecting your UserID, password and
User Account information from disclosure to third parties, and you are not permitted
to circumvent the use of required encryption technologies. You agree to (i) never
allow anyone to have access to your User Account, (ii) immediately notify SecondServing
of any unauthorized use of your UserID, password or User Account, or any other breach
of security, and (iii) ensure that you exit from your User Account at the end of
each session. While we may provide certain encryption technologies and may use other
reasonable precautions to protect your confidential information, we do not and cannot
guarantee or warrant that information transmitted through the Internet is secure,
or that such transmissions are free from delay, interruption, interception or error.
You are always responsible for use of your User Account by yourself and others,
including those persons that gained unauthorized access to your User Account through
your acts and omissions.
4. DISCLAIMERS; INDEMNIFICATION. Any and all interactions between
you and any third party through the Web Site is your exclusive and sole responsibility,
whether in person or through the Web Site. You acknowledge and agree that because
of the nature of an online service that arranges for third parties to offer goods
and/or services for sale, SecondServing cannot and does not actively investigate,
monitor, review or substantiate any representations or statements made by other
users of the Web Site. Likewise, SecondServing does not confirm the identity or
reputation of, or perform any background investigation into, any user of the Web
Site.
(a) NO WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEB
SITE IS AT YOUR SOLE RISK. THE WEB SITE, THE CONTENT, THE USER CONTENT, AND THE
PRODUCTS, SERVICES AND MATERIALS AVAILABLE THROUGH THE WEB SITE (WHETHER PROVIDED
BY SECONDSERVING, YOU, OTHER USERS OR OTHER AFFILIATES/THIRD PARTIES), INCLUDING,
ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF
EXCLUSION. SECONDSERVING PROVIDES THE WEB SITE ON A COMMERCIALLY REASONABLE BASIS
AND SECONDSERVING MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEB SITE, THE
CONTENT, THE USER CONTENT OR ANY PRODUCTS OR SERVICES OFFERED IN CONNECTION WITH
THE WEB SITE ARE OR SHALL REMAIN UNINTERRUPTED OR ERROR-FREE, THE CONTENT AND/OR
USER CONTENT SHALL BE NON-INFRINGING ON ANY THIRD PARTY’S INTELLECTUAL PROPERTY
RIGHTS, THE CONTENT AND/OR USER CONTENT SHALL BE ACCURATE OR TRUE, THAT DEFECTS
SHALL BE CORRECTED, THAT THE WEB PAGES ON THE WEB SITE OR THE SERVERS USED IN CONNECTION
WITH THE WEB SITE ARE OR SHALL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS,
DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PERSON
USING THE WEB SITE WILL BE THE PERSON THAT HE OR SHE REPRESENTS HIMSELF OR HERSELF
TO BE. SECONDSERVING DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE
WEB SITE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT SECONDSERVING SHALL HAVE
ADEQUATE CAPACITY FOR THE WEB SITE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
You acknowledge and agree that you are exclusively and solely responsible for taking,
and you will take, reasonable precautions in all interactions with other Web Site
users, whether online or in person.
(b) INDEMNIFICATION. You agree to defend, indemnify and hold SecondServing
and its affiliates, subsidiaries, owners, directors, officers, trustees, employees
and agents (collectively, the “Indemnified Parties”) harmless from and against any
and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages,
expenses and costs (including without limitation reasonable attorneys’ fees) assessed
or incurred by any Indemnified Party, directly or indirectly, with respect to or
arising out of: (i) your failure to comply with these Terms; (ii) your breach of
your obligations under these Terms; (iii) your use of the rights granted hereunder
including, without limitation, any claims made by any third parties; (iv) your violation
of any third party right including, without limitation, any copyright, property,
or privacy right; and/or (v) any claim that your User Content caused damage to a
third party, including, but not limited to, any other user of the Web Site.
5. LIMITATION OF LIABILITY.SECONDSERVING’S ENTIRE LIABILITY AND
YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE WEB SITE, YOUR COMMUNICATIONS
AND/OR DEALINGS IN CONNECTION WITH THE WEB SITE, AND/OR ANY PRODUCT OR SERVICE PROVIDED
IN CONNECTION WITH THE WEB SITE SHALL BE THE CANCELLATION OF YOUR USER ACCOUNT.
IN NO EVENT WILL SECONDSERVING BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEB SITE
AND/OR ANY SERVICE PROVIDED IN CONNECTION WITH THE WEB SITE OR FOR ANY OTHER CLAIM
RELATED IN ANY WAY TO YOUR USE OF THE WEB SITE AND/OR ANY SERVICE PROVIDED IN CONNECTION
WITH THE WEB SITE, INCLUDING, BUT NOT LIMITED TO, (I) ERRORS, MISTAKES, OR INACCURACIES
OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING
FROM YOUR ACCESS TO AND USE OF THE WEB SITE OR THE GOODS AND/OR SERVICES OBTAINED
THROUGH THE USE OF THE WEB SITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR
SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION
STORED THEREIN, (IV) ANY ACT OR OMISSION OF ANOTHER USER OF THE WEB SITE OR PERSON
OR BUSINESS ENTITY WITH WHOM YOU COMMUNICATE OR DEAL WITH THROUGH YOUR USE OF THE
WEB SITE, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEB SITE,
AND/OR (VI) ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR
OTHER HARMFUL COMPONENTS THAT MAY BE TRANSMITTED TO OR THROUGH THE WEB SITE BY ANY
THIRD PARTY OR FOR ANY LOSS OR DAMAGE OF ANY KIND. BECAUSE SOME STATES OR JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, IN SUCH STATES OR JURISDICTIONS SECONDSERVING’S LIABILITY WILL BE LIMITED
TO THE GREATEST EXTENT PERMITTED BY LAW.
6. PRIVACY. Personal data that you provide regarding yourself will be handled
in accordance with SecondServing’s Web Site Privacy Policy located at http://secondserving.com/Privacy-Policy
which is hereby incorporated herein as if stated in full.
7. THIRD PARTY CONTENT.
(a) SecondServing and/or Web Site users may provide hyperlinks to other web
sites maintained by third parties, or SecondServing and/or Web Site users may provide
third party content on the Web Site (collectively, “Third Party Content”). THE LINKS
TO THIRD PARTY WEB SITES AND THIRD PARTY CONTENT ARE PROVIDED FOR YOUR CONVENIENCE
AND INFORMATION ONLY. THE CONTENT ON ANY LINKED WEB SITE AND THIRD PARTY CONTENT
IS NOT UNDER SECONDSERVING’S CONTROL AND SECONDSERVING IS NOT RESPONSIBLE FOR THE
CONTENT OF LINKED WEB SITES AND THIRD PARTY CONTENT, INCLUDING ANY FURTHER LINKS
CONTAINED IN A THIRD PARTY WEB SITE. IF YOU DECIDE TO ACCESS ANY OF THE THIRD PARTY
WEB SITES LINKED TO THE WEB SITE OR VIEW THE THIRD PARTY CONTENT, YOU DO SO ENTIRELY
AT YOUR OWN RISK.
(b) If a third party links to the Web Site, it is not necessarily an indication
of an endorsement, authorization, sponsorship, affiliation, joint venture or partnership
by or with SecondServing. In most cases, SecondServing is not even aware that a
third party has linked to the Web Site. A web site that links to the Web Site: (i)
may link to, but not replicate, Content; (ii) may not create a browser, border environment
or frame Content; (iii) may not imply that SecondServing is endorsing it or its
products; (iv) may not misrepresent its relationship with SecondServing; (v) may
not present false or misleading information about SecondServing’s services or products;
and (vi) should not include content that could be construed as distasteful, offensive
or controversial, and should contain only Content that is appropriate for all age
groups.
8. USER CONTENT.
(a) The Web Site permits the submission of various forms of content submitted
by you and other users, such as documents, images, videos, text files, audio files
and comments (collectively, "User Content") and the hosting, sharing, downloading,
publishing and/or republishing of such User Content. SecondServing does not guarantee
any confidentiality with respect to any submissions of User Content to us. Any User
Content that you provide or make available to other users of the Web Site may be
copied and used by us and those parties in accordance with these Terms. Additionally,
all User Content will be viewable by “admin” and “super admin” users and may at
any time be subject to pre-screening, revision and/or deletion, at the sole discretion
of SecondServing or its designees, in order to protect against the storage of offensive,
indecent or objectionable materials and otherwise administer the Web Site. You also
consent that all User Content that you post to the Web Site will at all times be
available to us. By using the Web Site you may be exposed to User Content that is
offensive, indecent or objectionable. The User Content posted by any user of the
Web Site is not under SecondServing’s control and SecondServing is not responsible
for such User Content. If you decide to access any of the User Content, you do so
entirely at your own risk. ANY PERSONAL INFORMATION THAT YOU SHARE IN A PUBLIC OR
SEMI-PUBLIC FORUM IS NOT SUBJECT TO SECONDSERVING’S WEB SITE PRIVACY POLICY. ADDITIONALLY,
SECONDSERVING HAS NO CONTROL OF THE FURTHER DISSEMINATION OF INFORMATION THAT YOU
PROVIDE TO ANY THIRD PARTY.
(b) You shall be solely responsible for the User Content that you submit,
and the consequences of posting or publishing it. You represent, and warrant that:
(i) you own or have the necessary licenses, rights, consents, and permissions to
use, and to authorize SecondServing and those other users of the Web Site, to use
such User Content, all patent, trademark, trade secret, copyright or other proprietary
rights in and to any and all User Content and to enable inclusion and use of the
User Content as SecondServing deems appropriate; and (ii) to the extent applicable,
you have the written consent, release, and/or permission of each identifiable individual
person in the User Content to use the name or likeness of each such person to enable
inclusion and use of the User Content in the manner contemplated by the Web Site
and these Terms. By submitting the User Content to the Web SIite you hereby grant
SecondServing a worldwide, non-exclusive, royalty-free, irrevocable, sublicenseable
and transferable license to use, reproduce, distribute, prepare derivative works
of, display, publish, republish and perform the User Content in connection with
the Web Site and SecondServing’s (and its agents’, affiliates’ and successors’)
current and future business including, but not limited to, publication of any portion
or all of the User Content in an advertisement, a book, a magazine, a spoken word
work, any other literary work and/or any other audio-visual work, in any medium
or format, anywhere in the world. You also hereby grant each authorized user of
the Web Site a worldwide, non-exclusive, royalty-free, irrevocable and sublicenseable
license to copy, modify, use, reproduce, distribute, publish, republish and prepare
derivative works of, display and perform your User Content as permitted through
the functionality of the Web Site and under these Terms.
(c) You agree to not use the Web Site to: (i) upload, post, email, transmit
or otherwise make available any User Content that is unlawful, harmful, threatening,
abusive, harassing, bullying, tortious, false, defamatory, vulgar, obscene, libelous,
invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(ii) harm minors in any way; (iii) impersonate any person or entity, including,
but not limited to, an officer, director, or employee of SecondServing; (iv) falsely
state or otherwise misrepresent the goods and/or services offered by or through
you; (v) falsely state or otherwise misrepresent your affiliation with any person
or entity; (vi) forge headers or otherwise manipulate identifiers in order to disguise
the origin of any User Content transmitted through the Web Site; (vii) upload, post,
email, transmit or otherwise make available any User Content that you do not have
a right to make available under any law or under contractual or fiduciary relationships
(such as inside information, proprietary and confidential information learned or
disclosed as part of an employment relationship or under a nondisclosure or confidentiality
agreement); (viii) upload, post, email, transmit or otherwise make available any
User Content that infringes any patent, trademark, trade secret, copyright or other
proprietary rights of any party, including privacy and publicity rights, unless
you are the owner of such rights or have permission from the rightful owner to post
the material and to grant SecondServing and other users of the Web Site all of the
license rights granted herein; (ix) upload, post, email, transmit or otherwise make
available any unsolicited or unauthorized advertising, promotional materials, spam,
phishing schemes, pyramid schemes, or any other form of solicitation; (x) upload,
post, email, transmit or otherwise make available any material that contains software
viruses or any other computer code, files or programs designed to interrupt, destroy
or limit the functionality of any computer software or hardware or telecommunications
equipment; (xi) interfere with or disrupt the Web Site or any of the servers or
networks connected to the Web Site, or disobey any requirements, procedures, policies
or regulations of networks connected to the Web Site; (xii) intentionally or unintentionally
violate any applicable local, state, national or international law; (xiii) stalk
or otherwise harass another; or (xiv) collect or store personal data about other
users.
(d) You acknowledge that SecondServing reserves the right (but in no event
undertakes the obligation) to pre-screen User Content and that SecondServing and
its designees shall have the right (but not the obligation) in their sole discretion
to refuse, move and/or remove any User Content that is available on or through the
Web Site. Without limiting the foregoing, SecondServing and its designees shall
have the right to remove any User Content that violates these Terms or is otherwise
objectionable, in SecondServing’s absolute and sole discretion. You agree that you
must evaluate, and bear all risks associated with, the use of any Content or User
Content, including any reliance on the accuracy, completeness or usefulness of such
Content. In this regard, you acknowledge that you may not rely on any Content or
User Content created by SecondServing or submitted to or appearing on the Web Site.
(e) You acknowledge and agree that SecondServing may preserve User Content
and may also disclose User Content if required to do so by law or in the good faith
belief that such preservation or disclosure is reasonably necessary to: (i) comply
with legal process; (ii) enforce these Terms; (iii) respond to claims that any User
Content violates the rights of any third parties; or (iv) protect the rights, property
or personal safety of SecondServing, its users and/or the public. You further acknowledge
and agree that each person that has access to your User Content may have less restrictions
on his or her use of your User Content, and that you submit your User Content with
the understanding that any claim you have with respect to such use by others shall
be between you and such other person, and shall not include SecondServing and/or
its designees.
(f) SecondServing and its designees do not endorse any User Content or any
opinion, recommendation or advice expressed therein, and SecondServing and its designees
expressly disclaim any and all liability in connection with User Content. SecondServing
does not permit copyright infringing activities and infringement of intellectual
property rights on the Web Site, and SecondServing will remove all Content and User
Content if properly notified that such Content or User Content infringes on another's
intellectual property rights. SecondServing reserves the right to remove Content
and User Content without prior notice. Without limiting SecondServing right to cause
the termination of a User Account for any or no reason, SecondServing will also
cause the termination of a User Account if the owner of the User Account is determined
to be a repeat infringer. A repeat infringer is a user of the Web Site who has been
notified of infringing activity more than twice and/or has had User Content removed
from the Web Site more than twice. SecondServing also reserves the right to decide
whether User Content is appropriate and complies with these Terms for violations
other than violations of intellectual property law, such as, but not limited to,
obscene or defamatory material. SecondServing may remove such User Content and/or
cause the termination of a User Account for uploading such material in violation
of these Terms at any time, without prior notice and at its sole discretion. You
acknowledge and agree that SecondServing and/or its designees may disclose your
identity in connection with any claim of an intellectual property violation.
(g) If you are a copyright owner or an agent thereof and believe that any
User Content or other Content infringes upon your copyright rights, you may submit
a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing
our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3)
for further detail): (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 us to locate the material; (iv) information reasonably sufficient
to permit us to contact you, such as an address, telephone number, and, if available,
an email address; (v) the following statement: “I have a good faith belief that
the use of the copyrighted materials described above and contained on the service
is not authorized by the copyright owner, its agent, or by protection of law”; and
(vi) the following statement: “I swear, under penalty of perjury, that the information
in the notification is accurate and that I am the copyright owner or am authorized
to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Please also sign the submission that you make to the Copyright Agent. SecondServing’s
designated Copyright Agent to receive notifications of claimed infringement is:
DMCA Agent, Robert Cerf, email: robert@secondserving.com. For clarity, only DMCA
notices should go to the DMCA Agent; any other feedback, comments, requests for
technical support, and other communications should be directed to SecondServing’s
customer service through help@secondserving.com. You acknowledge that if you fail
to comply with all of the requirements of this Paragraph 8(g), your DMCA notice
may not be valid.
9. COPYRIGHT AND TRADEMARKS. The trademarks, service marks and logos used
and displayed on the Web Site are SecondServing’s, or its subsidiaries’ or affiliates’,
or one or more other party’s, registered and unregistered trademarks. SecondServing
is the copyright owner or authorized licensee of all text and all graphics contained
on the Web Site. All trademarks and service marks of SecondServing that may be referred
to on the Web Site are the property of SecondServing. Other parties’ trademarks
and service marks that may be referred to on the Web Site are the property of their
respective owners. Nothing on the Web Site should be construed as granting, by implication,
estoppel or otherwise, any license or right to use any of SecondServing’s trademarks
or service marks without SecondServing’s prior written permission. SecondServing
aggressively enforces its intellectual property rights. Neither the name of SecondServing
nor any of SecondServing’s other trademarks, service marks or copyrighted materials
may be used in any way, including in any advertising, hyperlink, publicity or promotional
materials of any kind, whether relating to the Web Site or otherwise, without SecondServing’s
prior, written permission.
If you believe that any Content or User Content on the Web Site violates any intellectual
property right of yours other than a copyright right (which is covered by Paragraph
8 above), please contact SecondServing at the address, email address or telephone
number set forth at the bottom of these Terms.
10. LOCAL LAWS. SecondServing makes no representation that content or materials
in the Web Site are appropriate or available for use in jurisdictions outside the
United States. Access to the Web Site from jurisdictions where such access is illegal
is prohibited. If you choose to access the Web Site from other jurisdictions, you
do so on your own initiative and are responsible for compliance with applicable
local laws. SecondServing is not responsible for any violation of law. You may not
use or export the Content and/or User Content or materials in the Web Site in violation
of U.S. export laws and regulations. You agree that the Web Site shall be deemed
solely based in the State of Delaware, and the Web Site shall be deemed a passive
website that does not give rise to personal jurisdiction over SecondServing, either
specific or general, in jurisdictions other than the State of Delaware. These Terms
shall be governed by and construed and enforced in accordance with the laws of the
State of Delaware, United States of America, without reference to conflict of laws
principles. You agree and hereby submit to the exclusive personal jurisdiction of
the state and federal courts located in the State of Delaware. You further agree
to comply with all applicable laws regarding the transmission of technical data
exported from the United States and the country in which you reside (if different
from the United States).
11. ARBITRATION. THIS ARBITRATION SECTION PROVIDES THAT ANY DISPUTE ARISING
FROM THESE TERMS AND/OR YOUR USE OF THE WEB SITE MAY BE RESOLVED BY BINDING ARBITRATION,
WHICH REPLACES THE RIGHT TO GO TO COURT. THIS SECTION PROHIBITS YOU FROM BRINGING
A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT, INCLUDING IN THE FORM OF
A PRIVATE ATTORNEY GENERAL ACTION, AND PROHIBITS YOU FROM BRINGING ANY CLAIM IN
ARBITRATION AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. IN ADDITION, THIS
ARBITRATION SECTION PROHIBITS YOUR ABILITY TO BE PART OF ANY CLASS ACTION OR OTHER
REPRESENTATIVE ACTION BROUGHT BY ANYONE ELSE, AND PROHIBITS YOUR ABILITY TO BE REPRESENTED
IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. IF NOT FOR THIS ARBITRATION SECTION,
YOU MAY HAVE OTHERWISE HAD A RIGHT TO PARTICIPATE OR BE REPRESENTED IN A CASE FILED
IN COURT BY OTHERS (INCLUDING CLASS ACTIONS AND OTHER REPRESENTATIVE ACTIONS) AND
YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT TO BRING CLAIMS IN A COURT BEFORE A JUDGE
OR JURY. EXCEPT AS OTHERWISE PROVIDED BELOW, YOU WAIVE ANY OTHER RIGHTS THAT YOU
WOULD HAVE IF YOU WENT TO A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL A DECISION.
You acknowledge and agree that this Arbitration Section and the agreements contained
herein are made pursuant to a transaction that involves interstate commerce, and
shall be governed by and be enforceable under the Federal Arbitration Act (the “FAA”)
(9 U.S.C. §1 et seq.) as it may be amended from time to time. The circumstances
and procedures under which claims (as defined below) may be resolved by arbitration
instead of in court are set forth herein. For the purposes of this Arbitration Section,
“we” and “us” means SecondServing, including any parent, subsidiaries, affiliates,
licensees, predecessors, successors, or assigns, and all of their officers, directors,
employees, agents, and assigns.
For the purposes of this Arbitration Section, a “Claim” shall be any claim, dispute
or controversy brought by either you or us against the other or against the employees,
parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other
and arising from or relating in any way to the Web Site or the goods and/or services
obtained through use of the Web Site. Either party hereto may, without the other’s
consent, elect to pursue mandatory binding arbitration with respect to any Claim.
A party who initiates a proceeding in court may elect arbitration with respect to
any such Claims advanced in the lawsuit by any party or parties. This Arbitration
Section governs all Claims, whether based in law, common law, tort, contract, status,
regulation, ordinance, constitutional provision, or any other legal theory of law,
including respondeat superior, or any other legal or equitable ground. In addition,
this Arbitration Section governs whether or not such Claims seek as remedies declaratory
relief, equitable relief, money damages, penalties or injunctions. For the purposes
of this Arbitration Section, the term Claim is to be given the broadest possible
meaning, including counterclaims, cross claims, third party claims, interpleaders
or otherwise. Any claim, dispute or controversy regarding the applicability of this
Arbitration Section or the validity of any or all of the Terms or the SecondServing
Web Site Privacy Policy are also Claims for the purposes of this Arbitration Section.
Notwithstanding anything herein to the contrary, you retain the right to pursue
any Claim in a small claims court and proceed on an individual basis for any such
Claim that is within the court’s jurisdiction. Arbitration of Claims will be conducted
as an individual action. Neither party agrees to any arbitration on a class or representative
basis and the arbitrator shall not have authority to proceed with any arbitration
on a class or representative basis. Even if a class action lawsuit or other representative
action is filed, including in the form of a private attorney general action, any
Claim between you and us related to such lawsuits will be subject to an individual
arbitration claim if so elected by either you or us. Arbitration proceedings with
respect to separate Claims will not be consolidated without the consent of all parties.
Only those Claims that are (1) those brought by us against you, or your heirs or
your trustee in bankruptcy or (2) those brought by you, or your heirs or your trustee
in bankruptcy against us, may be joined in an individual action under this Arbitration
Section
The party filing a Claim in arbitration must choose one of the following two arbitration
administrators: American Arbitration Association; or JAMS/Endispute (“JAMS”), both
of which are independent from us. Any arbitration will be conducted under the rules
of the selected arbitration administrator by an impartial third party chosen in
accordance with the rules of the selected arbitration administrator and as provided
herein. Arbitration hearings will be held at a place chosen by the arbitrator or
arbitration administrator within the federal judicial district in which you reside
at the time the Claim is filed or at some other place as agreed by the parties in
writing. Copies of the current rules of the arbitration administrators named above,
and well as information about arbitration and arbitration fees, and instructions
for initiating arbitration may be obtained by using the following contact information:
American Arbitration Association
1633 Broadway, 10th Floor, New York, NY 10019
Web site: www.adr.org
Telephone: 800-778-7879
JAMS
1920 Main Street, Suite 300, Irvine, CA 92614
Web site: www.jamsadr.com
Telephone: 800-352-5267
Claims will be resolved by a single, neutral arbitrator, who will be either be a
lawyer with at least ten years experience or a retired or former judge. The applicable
procedures and rules of the arbitration administrator that are in effect on the
date the arbitration is filed will govern the arbitration unless those procedures
and rules are inconsistent with this Arbitration Section in which case the procedures
and rules of this Arbitration Section will prevail. The procedures and rules of
arbitration may limit the amount of discovery available to you or us in the proceeding.
Applicable substantive law consistent with the FAA and applicable statutes of limitations
will be applied, and the arbitrator will honor claims of privilege recognized at
law. At your discretion, you may have a hearing and be represented by counsel. Reasonable
steps will be taken by the arbitrator to protect customer information and other
confidential information, and the arbitrator may use protective orders to prohibit
disclosure outside the arbitration if requested to do so by either party. The arbitrator
will have the power to award to a party any damages or other relief provided for
under applicable law, Terms and the SecondServing Web Site Privacy Policy. The arbitrator
will not have the power to award relief to, against, or for the benefit of any person
who is not a party to the proceeding. The arbitrator may award punitive damages
or attorneys fees if the law, Terms and the SecondServing Web Site Private Policy
authorize such relief. Any award made by the arbitrator will be evidenced in writing
by the arbitrator, but the arbitrator is not required to provide a statement of
reasons unless requested by a party.
Any failure or other delay by either party in enforcing this Arbitration Section
at any time, or in connection with any particular Claims, will not constitute a
waiver of any rights to require arbitration at a later time or in connection with
any other Claims. Decisions rendered in arbitration proceedings will be final and
binding on the parties. There shall be no appeal from arbitration decisions other
than for arbitrator bias, fraud or misconduct and any award granted in arbitration
will be enforceable by any court having jurisdiction as provided by the FAA and/or
other applicable law.
Regardless of which party prevails, each party will bear the expense of the fees
and costs of that party’s attorneys, experts, witnesses, documents and other expenses
for arbitration and any appeal. Notwithstanding the foregoing, the arbitrator shall
apply applicable law in determining whether a party should recover any or all fees
and costs from another party, and the parties will be bound by such determination.
This Arbitration Section shall survive: (i) termination of, or changes in, the Terms
or the SecondServing Web Site Privacy Policy and any relationship between you and
us; (ii) the bankruptcy of any party or any other similar proceeding initiated by
you or on your behalf; and (iii) payment in full of any debt by you or by a third
party. Should any portion of this Arbitration Section be deemed invalid or unenforceable,
the remaining portions shall nevertheless remain in force.
12. AVAILABILITY. Information that SecondServing publishes in the Web Site
may contain references or cross-references to products, programs or services of
SecondServing that are not necessarily announced or available in your area. Such
references do not mean that SecondServing will announce any of those products, programs
or services in your area at any time in the future. You should contact SecondServing
for information regarding the products, programs and services that may be available
to you, if any.
13. TERMINATION OF SERVICE. We may terminate your account or right to access
secured portions of the Web Site at any time, without notice, for any or no reason
including, but not limited to, conduct that we believe violates these Terms and/or
is harmful to other users of the Web Site, to SecondServing, to the business of
the Web Site’s Internet service provider, or to other information providers.
14. CUSTOMER COMMENTS. We welcome the submission of comments, information
or feedback through the Web Site. By submitting information through the Web Site,
you agree that the information submitted shall be subject to SecondServing’s Web
Site Privacy Policy.
14. MISCELLANEOUS. If any provision of these Terms is deemed invalid by a
court of competent jurisdiction, the invalidity of such provision shall not affect
the validity of the remaining provisions of these Terms, which shall remain in full
force and effect. No waiver of any term of these Terms shall be deemed a further
or continuing waiver of such term or any other term, and SecondServing’s failure
to assert any right or provision under these Terms shall not constitute a waiver
of such right or provision.
Your Consent To This Agreement
By accessing and using the Web Site, you consent to and agree to be bound by the
terms of the foregoing Terms. These Terms, together with SecondServing’s Web Site
Privacy Policy and any other legal notices published by SecondServing on the Web
Site, shall constitute the entire agreement between you and SecondServing concerning
the Web Site. If we decide to change these Terms, we will make an effort to post
those changes on the web page so that you will always be able to understand the
terms and conditions that apply to your use of the Web Site. Your use of the Web
Site following any amendment of these Terms will signify your assent to and acceptance
of its revised terms.
If you have additional questions or comments of any kind, or if you see anything
on the Web Site that you think is inappropriate, please let us know by email
help@secondserving.com or by sending your comments to:
SecondServing
2049 Polk St.
San Franisco, CA 94109
Attn: Customer Care – Web Site
(650) 275-2778
help@secondserving.com
Copyright © 2011. SecondServing. All Rights Reserved.
EFFECTIVE AS OF: April 10, 2011
LAST UPDATED: April 10, 2011