Terms of Service (of 8th June 2020)
These Terms of Service (“Terms”) are a legally binding agreement that governs your use of the web site of PM, including www.productmadness.com, any other sites on which these Terms are posted, and/or the games, services and applications offered by PM (collectively, the “Service”) and accessed through third-party web sites. You must be 18 or older to use the Service and it is intended for amusement purposes only. By using or accessing the Service, you agree to be bound by these Terms and all terms incorporated by reference. If you do not agree to these Terms in their entirety, do not use the Service.
These Terms are entered into between you and PM. The term “PM” means Product Madness, Inc. and Product Madness (U.K.) Limited along with their Affiliates. For purposes of these Terms, “Affiliates” means, with respect to any party, any person or entity that controls, is controlled by, or is under common control with, such party.
- ACCESS TO PM SERVICE
- OWNERSHIP OF INTELLECTUAL PROPERTY
- VIRTUAL ITEMS
- USER CONTENT
- POSTING ON OTHER WEBSITES
- USAGE RULES
- PRIVACY AND PROTECTION OF PERSONAL INFORMATION
- ACCOUNT RESPONSIBILITY
- DISPUTES WITH OTHERS
- DISCLAIMERS; LIMITATIONS; WAIVERS OF LIABILITY
- GOVERNING LAW/WAIVER OF INJUNCTIVE RELIEF
- DISPUTE RESOLUTION BY BINDING ARBITRATION
- STATUTE OF LIMITATIONS
- DIGITAL MILLENNIUM COPYRIGHT ACT
1) ACCESS TO PM SERVICE
a) The PM Service is licensed, not sold. Your license confers no title or ownership in the Service.
b) Subject to your acceptance and continuing compliance with these Terms, PM grants to you a non-exclusive, non-transferable, personal, revocable limited license to use and display the Service and related software (excluding source and object code) for your personal (or household) non-commercial use by any machine(s) of which you are the primary user. You agree not to use the Service for any other purpose, or to copy or distribute the content of the Service except as specifically allowed in this agreement.
c) PM reserves the right to change these Terms in any way and at any time.
d) We will notify you of any modifications to these Terms with one or both of the following methods: 1) we will post any modifications on www.productmadness.com or within the Service, and/or 2) we will send you a message informing you of the modified terms and linking you to the posting on the Service. You agree that you will 1) periodically check the Service for updates to these Terms, and 2) read the messages we send you to inform you of any changes. You agree that you will be considered to have been given notice of any modifications once we post them to www.productmadness.com and that your continued use of the Service after such notice shall be deemed an acceptance of any changes. If you do not agree to these Terms, as may be amended from time to time in PM’s sole discretion, your only remedy is to discontinue your use of the Service and to cancel your accounts. If you access the Service from a social network or download the Service from another platform or applications stores, such as but not limited to Facebook, you must also comply with its terms of service/use as well as PM’s Terms.
e) PM reserves the right to limit, suspend, modify, delete or discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability and without any obligation to compensate you for any losses.
f) You agree to be bound by any application, forum, or game specific rules published within the Service.
g) Your use of the Service is conditioned upon your compliance with these Terms and any use of the Service in violation of these Terms will be regarded as an infringement of PM’s copyrights in and to the Service. PM may, in its sole discretion, limit, suspend, terminate modify or delete accounts or access to the Service without notice if you violate these Terms. You agree that PM does not have to provide you with any notice before terminating or suspending your account, but it may, in its sole discretion, provide you with notice.
h) You must be 18 or older to use the Service and it is intended for amusement purposes only. By using the Service, you certify that you are at least 18 years of age (or the age of majority where you live).
i) You represent and warrant that you have full right and authority to use the Service and to be bound by these Terms.
2) OWNERSHIP OF INTELLECTUAL PROPERTY
a) Unless otherwise specified in writing, all materials that are part of the Service are owned, controlled, or licensed by PM and are protected by law from unauthorized use. The entire contents of the Service are protected by copyright. PM, the PM logos, and all game names are trademarks of PM and may not be used without the express written permission of PM.
b) You do not acquire any ownership rights by using the Service, downloading material from or uploading material to the Service, or by purchasing any virtual items.
c) You agree not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of PM.
d) All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to PM in connection with the use of the Service shall be the exclusive property of PM. You agree that unless otherwise prohibited by law PM may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.
3) VIRTUAL ITEMS
a) The Service may provide you with an opportunity to obtain a variety of virtual items such as virtual currency and virtual, in-game digital items, that can be used while playing the Service. You may be required to pay a fee to obtain virtual items. Regardless of the terminology used, virtual items may never be redeemed for “real world” money, goods or other items of monetary value from PM or any other party.
b) Prices and availability of virtual items are subject to change without notice.
c) You have no property interest in virtual items. Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the virtual items in the Service, you have no right or title in or to any such virtual items appearing or originating in the Service, or any other attributes associated with use of the Service or stored within the Service.
d) PM has the absolute right to manage, regulate, control, modify and/or eliminate such virtual items as it sees fit in its sole discretion, and PM shall have no liability to you or anyone for the exercise of such rights.
e) Transfers of virtual items are strictly prohibited except where explicitly authorized within the Service. Virtual items may not be transferred or resold for commercial gain in any manner, including, without limitation, by means of any direct sale or auction service. Virtual items may not be purchased or sold from any individual or other company via cash, barter or any other transaction. Virtual items have no monetary value, and cannot be used to purchase or use products or services other than within the Service. Virtual items cannot be exchanged for cash or any other value. Any attempt to do so is strictly forbidden and in violation of these Terms and may result in a lifetime ban from the PM Service and possible legal action.
f) You agree that all purchases of virtual items are payable in advance and are final except as otherwise provided in these Terms. No refunds will be given, except in our sole and absolute discretion. All virtual items are forfeited if your account is terminated or suspended for any reason, in PM’s sole and absolute discretion, or if PM discontinues providing the Service.
g) PM has no liability for hacking or loss of any virtual items. PM reserves the right, without prior notification, to limit the order quantity of any virtual items and/or to refuse to provide you with any virtual items.
h) You are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including your family or friends. If you cancel your account, PM reserves the right to collect any applicable fees, surcharges or costs incurred before cancellation. Any delinquent or unpaid accounts must be settled before PM will allow you to register again.
i) PM reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order was submitted and accepted) in any order, price, advertisement, promotion or giveaway.
4) USER CONTENT
a) The Service may invite you to chat or participate in blogs, message boards, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to PM and/or to or via the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively “User Content”). Any material you transmit to PM will be treated as non-confidential and non-proprietary.
b) You shall be solely responsible for your own User Content and the consequence of submitting and publishing your User Content on the Service.
c) You further affirm, represent and warrant that your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms without PM incurring any third-party obligations or liability arising out of its exercise of the rights thereto granted herein by you.
d) You grant to PM the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.
e) PM has no obligation to monitor or enforce any intellectual property rights that may be associated with your User Content, but PM does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
f) PM has no obligation to accept, display, review, monitor, or maintain any User Content. We have the right to delete User Content from the Service without notice for any reason at any time. PM may move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability; provided, however, that PM reserves the right to treat User Content as content stored at the direction of users for which PM will not exercise editorial control except to enforce the rights of third parties and the Content Restrictions set forth below when violations are brought to PM’s attention.
g) You acknowledge that you do not rely on PM to monitor or edit the Service and that the Service may contain content which you find offensive and you hereby waive any objections you might have with respect to viewing such content.
5) POSTING ON OTHER WEBSITES
a) You are granted a limited revocable license to post an image of your personal avatar and/or screen shot from your account within the Service and any other materials that PM specifically gives you notice may be posted on other web sites, on your own personal web site or on a third-party web site that permits posting of content at the direction of users provided that such third-party web site (i) is not commercially competitive to PM, (ii) does not criticize or injure PM, (iii) does not obtain any rights to such content other than a non-exclusive license to post it at your direction, and (iv) does not charge for access to such content or associated products, services or advertising with such content, so long as the web site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene, illegal/unlawful or otherwise objectionable information, topic, name or other material (an “Authorized Web Site”). All of PM’s rights and remedies are expressly reserved, and PM may revoke this limited license, in whole or in part, upon notice.
b) Without limitation, the following terms and conditions apply to your posting of a copy of your avatar and/or screen shots on an Authorized Web Site:
i)You must a display a prominent link to the Service’s homepage in connection with any of your uses permitted hereunder, including, without limitation, in e-mails you are sending friends; and
ii) You agree to include, and not remove or alter, PM’s trademark, copyright or other proprietary rights notices, as provided by PM on the Service and within e-mail page(s), when displaying an avatar or images from a PM game, and you agree to comply with usage guidelines that may be provided by PM from time to time. You agree that any and all goodwill that arises in connection with your use of PM’s trademarks inures exclusively to PM, and you agree not to challenge PM’s ownership or control of any PM trademarks, nor use or adopt any trademarks that might be confusingly similar to such PM trademarks.
6) USAGE RULES
a) As a condition of your use of and access to the Service, you agree to comply with these Usage Rules, which are provided as an example rather than as a limitation, and any application or game specific rules published within the Service.
b) You agree that your use of and conduct on the Service shall be lawful and your User Content will not:
i) include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
ii) include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language;
iii) defame, libel, ridicule, mock, disparage, threaten, harass, intimidate or abuse anyone;
iv) promote violence or describe how to perform a violent act;
v) include any comments or materials that promote any activities that may be construed as illegal;
vi) violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity; or
vii) be in violation of these Terms or the game rules of conduct (collectively “Content Restrictions”).
c) You and your activities on the Service will not:
i) reveal any personal information about another individual, including another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact or impersonate that individual;
ii) attempt to impersonate any other party;
iii) create user accounts by automated means or under false pretenses or mislead others as to the origins of your communications;
iv) trick, defraud or mislead PM and other users, especially in any attempt to learn sensitive account information such as passwords;
v) make improper use of PM’s support services or submit false reports of abuse or misconduct;
vi) engage in any commercial activities, including, without limitation, any attempt to raise money for anyone or advertise or promote a product, service, website, pyramid scheme or other multi-tiered marketing scheme;
vii) disparage, tarnish, or otherwise harm, in PM’s opinion, PM and/or the Service;
viii) violate these Terms or any local, state, federal or international law, rule or regulation or any other requirements or restrictions posted by PM on the Service;
ix) disseminate or transmit viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots or any other malicious or invasive code or program;
x) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party’s uninterrupted use and enjoyment of the Service and User Content or modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Service and User Content;
xii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;
xiii) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”);
xiv) except as may be the result of standard search engine or Internet browser usage, use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
xv) cover or obscure any notice, banner or advertisement on the Service;
xvi) disguise the source of your User Content or other information you submit to the Service or use tools which anonymize your internet protocol address (e.g. anonymous proxy) to access the Service;
xvii) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, collaborative content or the User Content;
xviii) attempt to sell the Service or any part thereof including but not limited to virtual items, user accounts, or access to them in exchange for real currency or items of monetary value; or
xix) engage in cheating or any other activity deemed by PM to be in conflict with the spirit or intent of the Service.
d) PM does not control or endorse the content, messages or information found in User Content portions of the Service or external sites that may be linked to or from the games or their forums and, therefore, PM specifically disclaims any responsibility with regard thereto. You agree to indemnify PM and its respective Affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers from any liability or damages arising out of or resulting from any content you post or communicate on or through the Service.
7) PRIVACY AND PROTECTION OF PERSONAL INFORMATION
b) When you complete PM’s registration process, you create a PM account (“Account”). Your Account may also include billing information you provide to third-party payment processors for the purchase of virtual items. You may not reveal, share or otherwise allow others to use your password or Account except as otherwise specifically authorized by PM. You are responsible for the confidentiality of your login and password and for the security of your computer system. PM is not responsible for the use of your password and Account or for all of the communication and activity on PM that results from use of your login name and password by you, by any person to whom you may have intentionally or by negligence disclosed your login and/or password in violation of this confidentiality provision, or by any other person who fraudulently used your login and password without your permission. If you believe that the confidentiality of your login and/or password may have been compromised, you must notify PM via [email protected] without any delay.
Your Account, including any information pertaining to it, is strictly personal. You may therefore not sell or charge others for the right to use your Account, or otherwise transfer your Account. You acknowledge and agree that content you submit when using the Service, including reviews and your communications with other users via online messaging, private messaging, forums or bulletin boards, and any other similar types of communications and submissions on or through the Service, are non-confidential, public communications, and you have no expectation of privacy concerning your use of or participation in the Service (other than with respect to the information you provide to us in establishing your Account).
You acknowledge that personal information that you communicate publicly within the Service may be seen and used by others and may result in unsolicited communications. PM is not liable for any information that you choose to submit or communicate to other users on or through the Service, or for the actions of any other users of the Service. You represent and warrant that you have all necessary rights in and to any materials that you post within the Service, that such materials do not infringe any proprietary or other rights of third parties, that all such content is accurate and will not cause injury to any person or entity, and that you will indemnify PM and its Affiliates, and their respective employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers, for all claims resulting from your submitted and posted content. If any such materials incorporate the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant PM permission to use any such name, voice, likeness and/or image of such individual appearing in the materials you post throughout the world in perpetuity. Once you post or communicate any content or materials on or through the Service, you expressly grant PM the complete, worldwide, fully sublicensable and irrevocable right to quote, re-post, use, reproduce, modify, adapt, publish, translate, create derivative works from, display, distribute, transmit, and broadcast such content or materials, including without limitation the name you submit in connection with such content or materials, in any form, with or without attribution to you, and without any notice or compensation to you of any kind. We reserve the right to immediately remove any content that may be considered, in our sole discretion, in violation of the rights of any third party.
8) ACCOUNT RESPONSIBILITY
i) provide true, accurate, current and complete information about yourself (“Registration Data”); and
ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
b) Users that maintain more than one account on a social network may not access this Service from multiple accounts. If you provide any information that is untrue, inaccurate, not current or incomplete, or PM has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, PM has the right to suspend or terminate your ability to participate in the Service and refuse any and all current or future use of the Service (or any portion thereof). PM reserves the right to terminate accounts that have been inactive for 180 consecutive days.
9) DISPUTES WITH OTHERS
a) We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Service. If you have a dispute with other users, you release PM and hereby agree to indemnify, defend and hold PM harmless from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
10) DISCLAIMERS; LIMITATIONS; WAIVERS OF LIABILITY
a) YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER THE LAWS APPLICABLE TO TERMS OF SERVICE WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER PM NOR ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “PM PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
b) TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT, AND THAT THE PM PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATE OR JURISDICTIONS, THE PM PARTIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE PM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PM PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. WITHOUT LIMITING THE FOREGOING, THE PM PARTIES ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OF ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SERVICE. THE PM PARTIES CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICE.
c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PM PARTIES SHALL NOT BE LIABLE FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE PM’S CONTENT AND SERVICE INCLUDING, BUT NOT LIMITED TO, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL COMMERCIAL DAMAGES OR LOSSES.
d) UNDER NO CIRCUMSTANCES WILL THE PM PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID PM IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
e) IF YOU ARE A RESIDENT OF NEW ZEALAND OR AUSTRALIA, THIS SECTION 10 DOES NOT EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY RIGHT OR REMEDY THAT CANNOT BE SO EXCLUDED, RESTRICTED OR MODIFIED INCLUDING THOSE CONFERRED BY THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993 AND THE AUSTRALIAN CONSUMER LAW (COMPETITION AND CONSUMER ACT 2010). UNDER THESE ACTS ARE GUARANTEES WHICH INCLUDE THAT GOODS AND SERVICES ARE OF ACCEPTABLE QUALITY. IF THESE GUARANTEES ARE NOT MET, THERE ARE ENTITLEMENTS TO HAVE THE SOFTWARE REMEDIED (WHICH MAY INCLUDE REPAIR, REPLACEMENT OR REFUND). IF A REMEDY CANNOT BE PROVIDED OR THE FAILURE IS OF A SUBSTANTIAL CHARACTER, THE ACTS PROVIDE FOR A REFUND.
a) You agree to defend, indemnify and hold harmless PM and its Affiliates, and their respective employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers, from and against all claims and expenses, including attorneys’ fees and costs, arising out of your use of the Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. You agree that the provisions in this paragraph will survive any termination of your Account(s) or the Service. PM reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
12) GOVERNING LAW/WAIVER OF INJUNCTIVE RELIEF
This Agreement and all aspects of the Service shall be governed by and construed in accordance with the internal laws of the United States and the State of Delaware governing contracts entered into and to be fully performed in Delaware (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in New Castle County, Delaware, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in New Castle County, Delaware.
You acknowledge that the rights granted and obligations made hereunder to PM are of a unique and irreplaceable nature, the loss of which shall irreparably harm PM and which cannot be replaced by monetary damages alone so that PM shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
13) DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS “DISPUTE RESOLUTION BY BINDING ARBITRATION” PROVISION CAREFULLY, BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH PM AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
THIS PROVISION PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST PM. IT ALSO PRECLUDES YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST PM BY SOMEONE ELSE. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE AND YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED IN THIS AGREEMENT, AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS REGARDING THE CONSEQUENCES OF YOUR DECISION. YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS BELOW.
EXCEPT AS EXPRESSLY PROVIDED BELOW, YOU AND PM AGREE TO RESOLVE ALL DISPUTES, CLAIMS, OR CONTROVERSIES BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, NO MATTER WHEN SUCH DISPUTES, CLAIMS, OR CONTROVERSIES AROSE OR ARISE. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THESE TERMS (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE CONCERNING THE BREACH, ENFORCEMENT, CONSTRUCTION, VALIDITY, INTERPRETATION, ENFORCEABILITY, OR ARBITRABILITY OF THESE TERMS); OR (iii) YOUR ACCESS TO OR USE OF THE SERVICE AND/OR YOUR ACCOUNT. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU AND PM WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Any election to arbitrate by one party shall be final and binding on the other. You and PM agree that such arbitration shall be conducted by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), as modified by these Terms. The determination of whether a dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
If you assert a dispute as a consumer, you will only be required to pay $250 of the fees charged by JAMS in connection with any arbitration under this section, and PM will bear all other costs charged by JAMS or the arbitrator, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services. You will be responsible for paying your own attorneys’ fees.
The arbitration may be conducted in person in Clark County, Nevada, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. With the exception of class procedures and remedies as discussed below, the arbitrator shall have the authority to grant any remedy that would otherwise be available in court. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and PM may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
You and PM shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary hearing, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
WAIVER OF CLASS RELIEF: WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND PM AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF JAMS’S PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. YOU AND PM ARE EACH WAIVING RESPECTIVE RIGHTS TO PARTICIPATE IN ANY PAST, PENDING, OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING. YOU AND PM ALSO AGREE NOT TO SEEK TO COMBINE ANY ACTION OR ARBITRATION WITH ANY OTHER ACTION OR ARBITRATION WITHOUT THE CONSENT OF ALL PARTIES TO THIS AGREEMENT AND ALL OTHER ACTIONS OR ARBITRATIONS.
You and PM agree that the following disputes are not subject to the above provisions concerning binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or PM’s intellectual property rights; and (2) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use.
You may opt out of this arbitration provision only by written Notice via U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.) to Product Madness, Inc., c/o Incorp Services, Inc., 919 North Market Street, Suite 950, Wilmington, DE 19801. You must send such Notice within thirty (30) days of your acceptance of these Terms. You must hand-sign and date the Notice, and include in it your name, physical address, email address(es) associated with your Account(s), and a clear statement that you do not wish to resolve disputes with PM through arbitration. You may also include your PM User ID(s) in the Notice. If you do not follow this procedure by your thirty (30) day deadline to do so, then you and PM shall both be bound by the terms of this section entitled “Dispute Resolution by Binding Arbitration.”
If any portion of this section entitled “Dispute Resolution by Binding Arbitration” is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
a) The failure of PM to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of PM’s right to assert or rely upon any such provision or right in that or any other instance.
b) You and PM agree that if any portion of these Terms is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
a) These Terms are effective until terminated by either party. You may terminate these Terms by destroying all Service-related materials obtained from the Service, PM or any other web site or source. The privileges granted to you under these Terms will terminate immediately and automatically without notice from PM if, in our sole discretion, you fail to comply with any term or provision of these Terms.
b) Neither the course of conduct between the parties nor trade practice will act to modify these Terms to any party at any time without any notice to you.
c) You may not assign these Terms without PM’s prior written consent.
d) These Terms contain the entire understanding of you and PM, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except as posted on the Service by PM.
e) Except as may otherwise be provided in these Terms, if any provision of these Terms is found to be illegal or unenforceable, the Terms will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect.
f) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
g) The section headings used herein are for convenience only and shall not be given any legal import.
h) Upon PM’s request, you will furnish PM any documentation, substantiation or releases necessary to verify your compliance with these Terms.
i) You agree that these Terms will not be construed against PM by virtue of having drafted them.
j) You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
k) Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
16) STATUTE OF LIMITATIONS
17) DIGITAL MILLENNIUM COPYRIGHT ACT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on the Service infringes any copyright that you own or control, you may notify PM’s Designated Agent listed below. For your notice to be effective, it must include the following information per the DMCA:
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) A description of the copyrighted work that you claim has been infringed upon;
iii) A description of where the material that you claim is infringing is located within the Service;
iv) Information reasonably sufficient to permit PM to contact you, such as address, telephone number, and, if available, an e-mail address at which you may be contacted;
v) A statement by you that you have a good-faith belief that the disputed use 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
vii) PM’s Designated Agent is:
Inc. c/o Incorp Services, Inc.
919 North Market Street, Suite 950
Wilmington, DE 19801