TERMS OF SERVICE
Last Updated: February 6, 2018
Please read these Terms of Service (the “Terms”) carefully as they govern your (“user(s),” “you” or “your”) access to and use of our website, www.luchacentral.com, (the “Site”) or other services (collectively, the “Services”) that link to or reference these Terms, and contain important information about your legal rights, remedies and obligations. By accessing or using the Services, you are agreeing to these Terms and concluding a legally binding contract with Masked Republic, LLC and its affiliates (the “Company,” “we,” “us” or “our”), a California limited liability company headquartered in Castro Valley, California.
Do not access or use the Services if you are unwilling or unable to be bound by the Terms.
PLEASE NOTE: SECTION 14 (DISPUTE RESOLUTION; BINDING ARBITRATION AND CLASS ACTION WAIVER) OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER THAT APPLIES TO ALL USERS OF OUR SERVICES. SECTION 14 (DISPUTE RESOLUTION; BINDING ARBITRATION AND CLASS ACTION WAIVER) AFFECTS HOW DISPUTES WITH US ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS BINDING ARBITRATION AND CLASS ACTION WAIVER CLAUSE.
Table of Contents
- Using the Services
- Use and Transaction Policies
- Notice of Copyright Infringement
- Notice of Availability of Filtering Software
- Suggestions and Improvements
- Third Party Links and Offerings
- Disclaimers and Limitations of Liability
- Dangerous Activities
- Governing Law
- Dispute Resolution; Binding Arbitration and Class Action Waiver
- Location of Your Access of the Services
- Suspension, Termination or Cancellation
We may modify the Terms from time to time. The most current version of these Terms will be located at www.luchacentral.com. You understand and agree that your access to or use of the Services is governed by the Terms effective at the time of your access to or use of the Services. If we make material changes to these Terms, we will notify you by email. We will also indicate at the top of these Terms the date that revisions were last made. You should revisit these Terms on a regular basis, as revised versions will be binding on you. You understand and agree that your continued access to or use of the Services after the effective date of any modifications to the Terms indicates your acceptance of such modifications.
- Using the Services
- Eligibility. You must be at least 13 years old (or such other minimum age as is applicable in your country of residence) to use the Services. If you are between the relevant minimum age and 18 years old (or the age of majority where you live), you and your parent or legal guardian must review these Terms together and you must obtain the consent of your parent or legal guardian to use the Services. Parents are responsible for the acts of their children that are under 18 years old when their children use the Services. The Company recommends that parents and legal guardians familiarize themselves with parental controls on devices they provide their children. The Services are not offered to users under the age of 13. You may not access or use the Services if we have previously banned you from the Services or closed your Account (as defined below).
- Permission to Use the Services. The Services are provided for your enjoyment, and unless otherwise specified on or in the Services, are solely for your personal use. We hereby grant you a personal, non-exclusive, non-transferable, terminable license to view and use the Services only for your personal use, subject to your compliance with these Terms. Except as expressly provided herein, we do not grant you any other express or implied rights or license in or to the Services, and all rights, title and interest that we have in the Services’ and rights not explicitly granted to you by the Company or the Company’s licensors are retained by the Company or the Company’s licensors, respectively. Your use of the Services is at your own risk, including the risk that you might be exposed to Content (as defined below) that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
Except as expressly set forth in the Terms, you may not modify (including without limitation making derivative works), copy, adapt, reverse engineer, de-compile or otherwise reduce to human perceivable format, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, transfer, license or sublicense, publicly display or sell in any form or by any means, in whole or in part, the Content of the Services without the Company’s or our licensors’ express prior written permission. This includes but is not limited to scraping user locations or utilizing any non-public information about our Services or other users and migrating that data anywhere.
The licenses granted to you are conditioned upon your proper conduct and compliance with these Terms at all times, as judged by the Company in the Company’s sole discretion and judgment. We reserve the right to suspend or deny, in our sole discretion, your access to all or any portion of the Services.
The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent but may be assigned or transferred by the Company without restriction. Any attempted assignment by you shall violate these Terms and be void.
- Service Availability. The Services may be modified, updated, interrupted, suspended or discontinued by the Company at any time without notice or liability.
- User Accounts. You may create a user account (“Account”) and provide certain personal information in order to use some of the features that are offered through the Services. Providing the Company with your personal information is your choice. You acknowledge and agree that you have no ownership or other proprietary interest in such Account.
In addition, to create an Account, the Company may require you to select a username and password. You acknowledge that you shall be responsible for ensuring that any username you select does not infringe any third party rights and is not otherwise unlawful. The Company may refuse to grant you a username in the Company’s sole discretion for any reason including if the proposed username impersonates or misleadingly implies an association with the persona of another person or entity, is or may be illegal, is or may be protected by trademark or other proprietary rights, is vulgar or otherwise offensive, or may cause confusion, or for any other reason as determined by the Company in the Company’s sole discretion. Your selection and use of a specific username does not convey any ownership or rights in that username and the Company reserves the right to revoke and/or reassign that username in the Company’s sole discretion. You understand and agree that the Company reserves the right to change, remove, alter or delete any username, with or without prior notice to you, at any time and for any reason in the Company’s sole discretion. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND ALL ACCESS TO AND USE OF YOUR ACCOUNT, INCLUDING ANY AND ALL ACTIVITIES (INCLUDING USE OF SERVICES) THAT ARE CONDUCTED THROUGH THE USE OF YOUR USERNAME AND PASSWORD WHETHER OR NOT AUTHORIZED BY YOU. YOUR ACCOUNT MAY BE SUSPENDED OR TERMINATED IF SOMEONE ELSE USES YOUR ACCOUNT TO ENGAGE IN ACTIVITY THAT VIOLATES THESE TERMS.
You agree to notify the Company immediately of any unauthorized use of your Account. We reserve the right to close your Account at any time for any or no reason.
- Communication from the Company and Other Users. By creating an Account, you agree to receive certain communications in connection with the Services. For example, you might receive friend requests from other users. You will also receive our daily email newsletter about the Site content updates.] You can opt-out of non-essential communications at the unsubscribe button or links in the email or the Site.
The Services include Content. “Content” consists of the software, code, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video and all other audio visual or other material appearing on or emanating to or from the Services. Content also includes user-generated Content (“UGC”), which consists of Account personas, forum posts, profile content, text, images posted to or otherwise made available on the Services by users.
- Responsibility for Your Content. You alone are responsible for UGC that you submit or transmit to, through or in connection with the Services (“Your Content”), and once published, Your Content cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on the quality, accuracy, or reliability of Your Content, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own or have the necessary permissions to use and authorize the use of Your Content as described in Section 3.2 (Our Right to Use Your Content). You may not imply that Your Content is in any way sponsored or endorsed by the Company.
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading or defamatory; violates any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
- Our Right to Use Your Content. You acknowledge and agree that by submitting or transmitting UGC to, through or in connection with the Services, you grant to the Company (and our subsidiaries, affiliates, licensees and each of their successors and assigns, and those acting with our authority) an unrestricted, absolute, royalty-free, perpetual, worldwide, irrevocable right and license to sublicense, reproduce, copy, modify, publish, edit, translate, create derivatives from in whole or in part, publicly display, publicly perform or otherwise use Your Content, or any part thereof, in combination with or as a composite of other materials, including but not limited to, text, data, images, photographs, illustrations, animation and graphics, video or audio segments of any nature in any of the Services or advertising and promotional materials. Please note that, to the extent any of Your Content is accessible, visible or usable by other users through the functionality of the Services, you also irrevocably grant all other users of the Services the royalty-free, perpetual, worldwide, irrevocable right and license to reproduce, copy, modify, publish, edit, translate, create derivatives from in whole or in part, publicly display, publicly perform or otherwise use Your Content, or any part thereof, in combination with or as a composite of other materials, in connection with their use of the Services. You also irrevocably waive, and cause to be waived against the Company and other users of the Services any claims and assertions of moral rights or attribution with respect to Your Content. The licenses granted in this subsection shall survive the termination of these Terms.
- No Expectation of Privacy. You acknowledge that your chats, postings and other communications with other users of the Services or with the Company are public and not private communications and that you have no expectation of privacy for or concerning your use of these communication features of the Services.
- Ownership. All Content is either owned by the Company or the Company’s licensors; or is licensed to the Company and the Company’s licensors pursuant to Section 3.2 (Our Right to Use Your Content) above. As between you and the Company, you own Your Content. We own the Company Content, including but not limited to visual interfaces, interactive features, graphics, design, our compilation of UGC and other Services Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Services excluding Your Content, UGC and Third Party Content. We also own the copyrights, trademarks, service marks, trade name, and other intellectual property rights throughout the world (“IP Rights”) associated with the Company Content and the Services, which are protected by copyright, trade dress, patent, trademark laws, and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of public displays or in any way exploit any of the Company Content or the Services in whole or in part except as expressly authorized by the Company. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Services and the Company Content are retained by the Company. “Company Content” means Content that the Company creates and makes available in connection with the Services. “Services Content” means all of the Content that is made available in connection with the Services, including Your Content, other UGC, Third Party Content, and Company Content. “Third Party Content” means Content that originates from parties other than the Company or users of the Services, which is made available in connection with the Services.
- Advertising. The Company and the Company’s licensors may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
- Right to Remove. UGC (including any that may have been created by users employed or contracted by the Company) does not necessarily reflect the opinion of the Company. We reserve the right to remove, screen, edit, or reinstate UGC, including Your Content, from time to time at our sole discretion for any reason or no reason, and without notice to you. We may remove UGC if we deem necessary, including but not limited to if such UGC is inappropriate, raises a conflict of interest, is promotional, irrelevant, violates other user’s privacy or has been stolen from another party. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
- Products and Specifications. The inclusion of any products or services on the Site does not imply or warrant that these products or services will be available at any particular time. Products included on the Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Site. In the event a product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we will refund any such charges within a commercially reasonable period of time after cancellation. The actual color of products you see will depend in part on your computer system, and we cannot guarantee any color, texture or detail of actual products will be accurate. In no event will anything contained in this Terms of Services or any area of the Site be construed as a representation or guarantee with respect to any content, services or products. We do not guarantee the accuracy, completeness or usefulness of any descriptions or other content. Further, we do not endorse, and are not responsible for, the accuracy and reliability of any opinion or statement made on the Site by any third party, including but not limited to, customers, manufacturers, distributors or suppliers of products and services sold through the Site. We assume no responsibility or obligation to modify or remove any inaccurate content. In addition, we may make changes to information about price, availability or other product attributes without notice. We reserve the right, without prior notice, to limit the order quantity on any product or service, to refuse service to any customer, or to cancel any order, including after it is submitted. We also may require additional verifications or other information prior to the acceptance and/or shipment of any order. Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. With respect to the shipment of products and services sold through the Site, risk of loss and title for items purchased from the Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law.
We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
- Improper Use of the Services. You agree not to, and will not assist, encourage, or enable others to use the Services to:
- Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right;
- Upload any Content that is indecent, libelous, defamatory, obscene, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable;
- Post or upload repetitive and/or off-topic Content; or
- Solicit personal information from minors, or submit or transmit pornography;
- Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
- Promote a business or other commercial venture or event, or otherwise use the Services for commercial purposes, except as expressly permitted by the Company;
- Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Service’s search results or the search results of any third party website; or
- Violate any applicable law.
- Additional Restrictions. You also agree not to, and will not assist, encourage, or enable others to:
- Violate the Terms;
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade or in any way exploit the Services or Services Content (other than Your Content), except as expressly authorized by us;
- Use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index any portion of the Services or any Services Content;
- Reverse engineer any portion of the Services;
- Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services;
- Record, process or mine information about other users;
- Access the Services by means other than through the public interfaces we provide to you;
- Reformat or frame any portion of the Services;
- Take any action that imposes, or may impose, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive traffic demands of the Services, as determined by the Company in the Company’s sole discretion;
- Attempt to gain unauthorized access to the Services, user Accounts, computer systems or networks connected to the Services through hacking, password mining or any other means;
- Use the Services or any Services Content to transmit any computer viruses, worms, defects, Trojan horses or any other computer code, files or programs designated to interrupt, destroy or limit the functionality of the Services;
- Use any device, software or routine that interferes with the proper working of the Services or otherwise attempt to interfere with the proper working of the Services;
- Use the Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Services or Services Content;
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of Services Content or features that enforce limitations on the use of the Services;
- Post repetitive and/or off-topic UGC; or
- Use the Services if you or such other persons are located in a country that is embargoed by the United States or if you or such other persons are on the U.S. Treasury Department’s list of Specially Designated Nationals.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law). Moreover, the Company reserves the right to determine what conduct the Company considers to be in violation of these Terms or otherwise outside the intent or spirit of the Services. The Company reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Services in whole or in part.
- Use and Transaction Policies
- Equipment. You will provide at your own expense the equipment and internet connection required to access and use the Services.
- Use Charges. The Company shall have no liability to you for use charges related to any device or service that you use to access the Services, including, without limitation, use charges for mobile telephones, tablet devices, Internet service providers, car navigation systems and other devices, whether wireless, wireline, requiring cradle synchronization or otherwise.
- Products Purchase and Children. Our Services are not intended for use by children under age 13 or persons who have not reached the age of majority under the laws of the applicable jurisdiction. If you are a parent, legal guardian or other adult responsible for children in your care, you are fully responsible for any use of your credit card or other payment instrument by the children in your care. Parents, legal guardians and other adults who provide access to our Services to their children or children in their care should take precautions to prevent unintended purchases of any products on the Site through the Services. We accept ABSOLUTELY NO RETURNS on any products purchase, including those made by children (minors) in your care.
- Purchase Errors. We assume no liability for purchase errors, trial versions, software purchased for the wrong telephone, device or platform, promotion codes or discounts not provided at the time of purchase or any unintended purchased item for any reason (“Purchaser Errors”). We shall not be liable for any errors on billing statements issued to you by your carrier or any third party payment channel that you use, such as PayPal. You accept full responsibility for confirming that your device, platform and carrier are supported and that the phone or other device and platform are compatible with the products or services purchased, downloaded or otherwise obtained by you through the Services. Although we will make commercially reasonable efforts to help you obtain the proper software for your device or platform, we shall not be liable or responsible for any Purchaser Errors. If you have other questions in connection with any product or service available through the Services, please contact our customer support at firstname.lastname@example.org. We accept ABSOLUTELY NO RETURNS on any products purchase. Please review your system requirements very carefully before making any purchases. You agree to be responsible for obtaining and maintaining all device hardware, software and other equipment needed for access to and use of the Services, and all charges related thereto.
- Notice of Copyright Infringement
The Company respects the intellectual property rights of others and expects our users to do the same. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), a summary of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, the Company will respond expeditiously to claims of copyright infringement committed using the Services if such claims are reported to the Company’s Designated Copyright Agent identified in the notice below.
If you are a copyright owner, authorized to act on behalf of a copyright owner, or authorized to act under any exclusive right under copyright, please report any alleged copyright infringements taking place on or through the Services by completing the following DMCA Notice of Alleged Infringement and delivering the Notice to the Company’s Designated Copyright Agent. Upon receipt of a DMCA Notice of Alleged Infringement as described below, the Company will take whatever action, in the Company’s sole discretion, that the Company deems appropriate, which may include the removal of, or disabling of access to, the challenged material from the Services.
DMCA Notice of Alleged Infringement (“Notice”)
Deliver this Notice, with all items completed, to the Company’s Designated Copyright Agent:
Email: DMCA@luchacentral.com (with the subject line “DMCA Notice of Alleged Infringement”)
In the event the Company, after receiving a proper DMCA Notice of Alleged Infringement, takes steps to remove or disable access to the challenged material, the Company will take reasonable steps to promptly notify the party who originally posted such challenged material to the Services (the “Posting Party”) that the Company has removed or disabled access to such challenged material. Provided the challenged material does not otherwise violate these Terms, the Posting Party may then dispute such DMCA Notice of Alleged Infringement by completing the following DMCA Counter-Notice and delivering the Counter-Notice to the Company’s Designated Copyright Agent. Upon receipt of a proper DMCA Counter-Notice, the Company will promptly provide the party who submitted the relevant DMCA Notice of Alleged Infringement (the “Reporting Party”) with a copy of such DMCA Counter-Notice and inform the Reporting Party that the Company will replace the removed material or cease disabling access to such material in 10 business days, and will thereafter replace the removed material and cease disabling access to such material not less than 10, nor more than 14, business days following receipt of such DMCA Counter-Notice, unless the Company’s Copyright Agent first receives notice from the Reporting Party that such Reporting Party has filed an action seeking a court order to restrain the Posting Party from engaging in infringing activity relating to the challenged material on the Services.
DMCA Counter-Notice (“Counter-Notice”)
Deliver this Counter-Notice, with all items completed, to the Company’s Designated Copyright Agent:
Masked Republic, LLC
Email: DMCA@luchacentral.com (with the subject line “DMCA Counter-Notice”)
Please note that pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that the material or activity was removed or disabled by mistake may be subject to liability. Please also be advised that the Company enforces a policy of terminating the Accounts of, or banning, repeat infringers. A repeat infringer includes any user who has made two or more postings that the Company has removed or disabled access to pursuant to notices of infringement under these DMCA notice and takedown procedures.
- Notice of Availability of Filtering Software
You should know that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at https://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children’s Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
- Suggestions and Improvements
By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback and you irrevocably waive, and cause to be waived, against the Company and our users any claims and assertions of any moral rights that you may have with respect to such Feedback.
- Third Party Links and Offerings
The Services may include links to other websites or applications (each a “Linked Third Party Site”). These Linked Third Party Sites are provided as a courtesy by our vendors to users of our Services.
The Company has no control over the Linked Third Party Sites or the materials, information, goods or services available or contained on Linked Third Party Sites or how your data and/or personal information is used by such Linked Third Party Sites. The Company is not responsible for, does not endorse, represent or warrant in any way the content, goods and/or services of Linked Third Party Sites, and the Company is not liable for any claim you may have regarding any content, goods and/or services of Linked Third Party Sites. Also, the Company is not responsible for any privacy or other business practices of such Linked Third Party Sites or any materials, information, goods or services available through such Linked Third Party Sites. If you decide to access any of the Linked Third Party Sites, you do so entirely at your own risk. The Company reserves the right to terminate any link to any Linked Third Party Site at any time.
You agree to indemnify, defend and hold the Company, the Company’s parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the “Company Entities”) harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Services, (ii) your violation of the Terms, (iii) any products or services purchased or obtained by you in connection with the Services, or (iv) any infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company and you agree to cooperate with the Company’s defense of these claims. You agree not to settle any such matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of such claim, action or proceeding.
- Disclaimers and Limitations of Liability
PLEASE READ THIS SECTION 11 CAREFULLY SINCE THIS SECTION LIMITS THE LIABILITY OF THE COMPANY TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION 11. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
- NO WARRANTY OF THE SERVICES. THE PRODUCTS, THE SERVICES AND THE MATERIALS ON THE SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE WEBSITE, ARE MADE AVAILABLE TO YOU ON AN “AS IS” WITHOUT WARRANTY, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE COMPANY MIGHT NOT MONITOR, CONTROL OR VET PRODUCTS, UGC OR THIRD PARTY CONTENT. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE COMPANY MAKES NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY OR RELIABILITY OF THE SERVICES, THE SAFETY OR SECURITY OF THE SERVICES, OR THE SERVICES CONTENT. ACCORDINGLY, THE COMPANY IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICES’ INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY OR RELIABILITY OF THE SERVICES CONTENT. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIM AND EXCLUDE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SITE, ITS CONTENT AND THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE SITE.
- CONFIDENTIALITY OR PRIVACY. THE COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED THROUGH THE SERVICES OR ANY LINKED THIRD PARTY WEBSITE. THE COMPANY WILL NOT BE LIABLE FOR THE PRIVACY OF EMAIL ADDRESSES, REGISTRATION OR IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION OR ANY OTHER CONTENT STORED ON OUR EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY THE SERVICES OR OTHERWISE CONNECTED WITH YOUR USE OF THE SERVICES.
- THIRD PARTY SERVICES. THE COMPANY MAKES NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY SERVICES AVAILABLE THROUGH OUR SERVICES. ACCORDINGLY, THE COMPANY IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THE ACTIONS OR OMISSIONS OF SUCH THIRD PARTY SERVICES, INCLUDING, FOR EXAMPLE, IF A THIRD PARTY SERVICE MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH OUR SERVICES IS AT YOUR OWN DISCRETION AND RISK.
- DISCLAIMER OF WARRANTIES. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF THE COMPANY SHALL CREATE A REPRESENTATION OR WARRANTY.
- USER REMEDIES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES, THIRD PARTY SERVICES MADE AVAILABLE THROUGH THE SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
- Dangerous Activities
WE DO NOT RECOMMEND USE OF THE SERVICES DURING CERTAIN ACTIVITIES, SUCH AS DRIVING, WHERE A SIGNIFICANT RISK OF INJURY OR ACCIDENT EXISTS. YOU AGREE NOT TO USE OUR SERVICES DURING SUCH ACTIVITIES AND ACKNOWLEDGE THAT ANY SUCH USE WOULD BE A VIOLATION OF THESE TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR SOLE RISK AND WE WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OF ANY NATURE RESULTING FROM SUCH USE.
WE WOULD LIKE TO REMIND YOU THAT THE ATHLETES OR WRESTLERS WHO PERFORM IN LUCHA LIBRE EVENTS OR ALTERNATIVE EVENTS WE CREATE THAT INVOLVING WRESTLING (THE “WRESTLERS”), ARE TRAINED SPORTS ENTERTAINERS. YOU SHOULD NEVER TRY TO EMULATE WHAT THE WRESTLERS DO IN ANY LUCHA LIBRE EVENTS OR OTHER WRESTLING EVENTS.
- Governing Law
Any claims arising out of the Services or these Terms (including interpretation, claims for breach, and all other claims, including consumer protection, unfair competition and tort claims) will be subject to the laws of the State of California, United States, without reference to conflict of laws principles.
- Dispute Resolution; Binding Arbitration and Class Action Waiver
READ THIS SECTION 14 CAREFULLY. THIS SECTION 14 MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- Informal Dispute Resolution. The Company’s Customer Support department is available by email: email@example.com to address any concerns, disputes, claims or controversies you may have regarding the Services, these Terms (including its interpretation, formation, performance and breach) or the relationship between you and the Company (collectively, “Disputes”). Most Disputes are quickly resolved in this manner to our users’ satisfaction. The parties shall use their best efforts to settle any Dispute directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
- Formal Dispute Resolution. If the parties do not agree upon a resolution in connection with a Dispute within a period of 30 calendar days from the time informal dispute resolution is initiated pursuant to Section 14.1 (Informal Dispute Resolution), you and the Company expressly agree that the provisions in Section 14.2(a) (Agreement to Arbitrate), Section 14.2(b) (Location), Section 14.2(c) (Class Action Waiver), Section 14.2(d) (Exception – Litigation of Intellectual Property and Small Claims Court) and Section 14.2(e) (30 Day Right to Opt Out) apply to you if (i) you are domiciled in and/or use the Services in the United States or (ii) you are domiciled in and/or use the Services from outside the United States, legal proceedings in connection with a Dispute are initiated within the United States and you are entitled to participate in such proceedings.
- Agreement to Arbitrate. If the parties do not agree upon a resolution in connection with a Dispute within a period of 30 calendar days from the time informal dispute resolution is initiated pursuant to Section 14.1 (Initial Dispute Resolution), then either party may initiate binding arbitration as the sole means to formally resolve claims (the “Agreement to Arbitrate”), subject to the terms set forth below. Specifically, all Disputes shall be finally settled by binding arbitration administered by the American Arbitration Association (the “AAA”). The arbitration proceedings shall be governed by AAA’s Commercial Arbitration Rules (the “AAA Rules”) and, where appropriate, AAA’s Supplementary Procedures for Resolution of Consumer-Related Disputes (the “AAA Consumer Rules”). This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act shall apply to the interpretation, applicability, enforceability and formation of these Terms notwithstanding any other choice of law provision contained in these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including without limitation any claim that all or any party of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
The AAA Rules and the AAA Consumer Rules are both available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the cost of litigation and the right to discovery may be more limited in arbitration than in court.
- Location. If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Alameda County, California, and you and the Company agree to submit to the personal jurisdiction of any federal or state court in Alameda County, California, in order to compel arbitration, to stay proceedings pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR THE COMPANY’S INDIVIDUAL CAPACITY, AND NOT AS A PLANITFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this subsection is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Disputes.
- Exception – Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all Disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Services under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
- 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Subsection 14.2(a) (Agreement to Arbitrate), Subsection 14.2(b) (Location) and Subsection 14.2(c) (Class Action Waiver) above by sending written notice of your decision to opt-out to the following address: P.O. Box 2351, Castro Valley, Attn: Legal. The notice must be sent within 30 days of your first access or use of the Services; otherwise you will be bound to arbitrate Disputes in accordance with the terms of those Subsections. If you opt-out of these arbitration provisions, the Company also will not be bound by such provisions.
- Disputes Not Subject to Arbitration or Class Action Waiver. For Disputes not subject to the “Agreement to Arbitrate” set forth in Section 14.2(a) (Agreement to Arbitrate), or if any court or arbitrator determines that the “Class Action Waiver” set forth in Section 14.2(c) (Class Action Waiver) is void or unenforceable for any reason or that an arbitration can proceed on a class basis, exclusive jurisdiction for any claim or action arising out of or relating to the Services or these Terms shall be the federal or state courts in Alameda County, California, and you expressly consent to the exercise of personal jurisdiction of such courts.
- Changes to this Section. The Company will provide 60-days’ notice of any changes to this Section 14.2 and any such change will apply only to any claims arising after the 60th day following such notice.
- Location of Your Access of the Services
We operate the Services through AWS Cloud Environment. Access to the Services from any territory where the Content is illegal is prohibited. The display of the Services alone does not subject the Company to jurisdiction in your location.
- Suspension, Termination or Cancellation
- Termination by You. You may terminate these Terms at any time by closing your Account, discontinuing your use of the Services. You have the right to cancel your Account at any time.
- Termination by the Company. We may suspend, cancel or terminate your Account, suspend your ability to use certain portions of the Services, and/or ban you altogether from the Services for any reason or for no reason, and without notice or liability of any kind. Reasons for such suspension, cancelation or termination may include, but are not limited to, if we believe in good faith that (a) you or a related person has engaged in any of the restricted conduct described in Section 4 (Restrictions) or otherwise violated or may have violated these Terms, (b) your Account and use of the Services have been inactive for more than twenty-four (24) months. To the extent that you violate these Terms and we revoke the licenses granted to you, you will lose all benefits and privileges associated with the Services. We are under no obligation to compensate you for any such losses.
We reserve the right to stop making available any one or more of the Services, at any time, whether on a temporary or permanent basis and without any liability, compensation, refunds or other compensatory benefits to you. Your license to the Services automatically ends when we terminate access to such Services. Any such action could prevent you from accessing your Account, the Services, Your Content, Services Content, or any other related information.
- Survival. In the event of any termination of these Terms, whether by you or the Company, the following Sections will continue in full force and effect: Section 3 (Content), including but not limited to the Company’s right to use Your Content, Section 4 (Restrictions), Section 5 (Use and Transaction Policies), Section 9 (Third Party Links and Offerings), Section 10 (Indemnity), Section 11 (Disclaimers and Limitations of Liability), Section 13 (Governing Law), Section 14 (Dispute Resolution; Binding Arbitration and Class Action Waiver), Section 16 (Suspension, Termination or Cancellation) and Section 17 (Miscellaneous).
- Rights. Nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
- Agreement Between You and the Company. The Terms contain the entire agreement between you and the Company regarding the use of the Services; and supersede any prior agreement between you and the Company on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
- Waiver. Any failure on the Company’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
- Severance. If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
- Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.