evapapp.com terms of service

LAST UPDATED MARCH 22, 2014.

Welcome to EvaPapp.com. The web pages available at www.evapapp.com and all sub-domains thereof (the “Site”) are owned and operated by Evo, Inc., a Washington corporation (the “Company,” “us,” “we,” and “our”), are accessed by you (the “User,” “user,” “you,” or “your”) under the following terms and conditions. All of our programs, sets, e-courses, books, articles, games and services (as described more fully on the Site) (collectively, the “Services”) are governed by these Terms of Service (the “Terms,” the “Terms of Service,” or the “Agreement”). YOU AGREE THAT BY USING THE SITE OR THE SERVICES YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALY ABLE TO ENTER INTO THIS AGREEMENT. No person under the age of 13 may use the Site or the Services. THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE THE SITE AND STOP USING THE SERVICES.

We may, from time to time, without notice, update or revise the Terms of Service. If we update or revise the Terms of Service, we will notify you either by email to your most recently provided email address or by posting the updated or revised Terms of Service on the Site. Your use of the Site following any such update or revision constitutes your agreement to follow and be bound the Terms of Service as updated or revised from that time forward. You can view the most current Terms of Service at any time by clicking on the Terms of Service link at the bottom of the Site’s home page. It is your responsibility to review the Terms of Service periodically.

If you violate the Terms of Service, we may terminate any and all accounts you have established at the Site (your “Account(s)”). You acknowledge that the Company is not required to provide you notice before it terminates your Account(s).

 

SITE CONTENTS. 

All materials displayed, performed, or made available on or through the Site (including, but not limited to text, graphics, sets, e-courses, books, chapters, exercises, games, names, logos, service marks and trademarks, applications, news articles, photographs, images, illustrations, audio clips and video clips, collectively, the “Content”) constitute our intellectual property and are protected by copyright and/or trademark laws, U.S. laws, international conventions, and other laws. The Site and the Content may only be used in accordance with the Terms of Service. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (unless otherwise provided in the Terms of Service), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.

You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Site.

You may access the Content and other items displayed on the Site for personal use only. You shall not store any of the Content in any form from the Site unless otherwise explicitly permitted on the Site. Downloading, copying or storing of any Content is expresslyprohibited without the prior written permission from the Company, or from such other copyright holder as may be identified in such Content’s copyright notice. Your use or access of the Site does not grant you any rights in or to the intellectual property of theCompany or any third-party.

Although we may from time to time monitor, review or comment on discussions, postings, transmissions and other user-generated pages on the Site, we have no obligation to do so. You acknowledge that we do not actively monitor and control the informationavailable on the bulletin boards, chat rooms and other user-generated pages (if any) and that any opinions, advice, statements,  services, offers or other information or Content presented or disseminated in any group/forum or any other user-generated pages are those of their respective authors. Therefore, we do not warrant or guarantee the accuracy, adequacy, applicability, completeness, currency or quality of any such Content or the qualifications of those contributing the Content. WE AND OUR USERS WILL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND FOR ANY PROFESSIONAL INFORMATION THAT YOU ENCOUNTER THROUGH THE SITE, THE SERVICES OR THE CONTENT, AND ANY USE OR RELIANCE ON ANY PROFESSIONAL INFORMATION IS SOLELY AT YOUR OWN RISK.

 

LICENSE TO USE THE SITE. 

In consideration for your agreement to the Terms of Service, the Company grants you a personal, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make personal use of the Site subject to the terms and conditions set forth in the Terms of Service or such other terms and condition as may be set forth on the Site.

 

LICENSE TO USE YOUR CONTENT. 

Any communication or material you post or transmit to the Service or the Site will be treated as non-confidential andnon-proprietary. You assume full responsibility for anything you post or transmit. By uploading or posting any Content to the Site, including any message, file or other form of communication, you hereby grant to the Company a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell any such Content. Without this license, we would not be able to make your Content available through the Site.

You represent and warrant that you have all legal, moral and other rights that may be necessary to grant the Company the license described in the preceding paragraph. You agree that you will not make any claims against the Company based on any allegations that any activities or alleged omissions within the Site, whether or not by or condoned by the Company, infringe any intellectual property rights associated with any Content that you upload or post to the Site. You acknowledge and agree that the Company has the right (but not obligation), in its sole discretion, to refuse to publish or to remove or block access to any Content you upload or post to the Site at any time and for any reason, with or without notice.

 

REGISTRATION. 

In order to use the Site or certain parts of it, you may be required to register for a user account. In this case, you agree to provide accurate, complete and up-to-date information when establishing your account. Failure to do so will constitute a breach of the Terms of Service, which may result in immediate termination of your Account(s).

Users may not (a) select or use as an EvaPapp User ID a name of another person with the intent to impersonate that person or (b) use as an EvaPapp User ID a name subject to any rights of a person other than User without appropriate authorization. The Company reserves the right to refuse registration of, or cancel a User ID at its discretion. Also, you will be solely responsible for maintaining the confidentiality of your password and keeping it secure.

You are solely responsible for all activity on your Account(s), whether authorized or not authorized by you, and for the security of your computer systems. You agree to immediately notify us of any unauthorized use of your Account(s), User ID or password. You agree to indemnify and hold the Company harmless for any improper or illegal use of your Account(s), including but not limited to illegal or improper use by someone who has received permission to use your Account(s). In addition, you agree that you will never use another user’s Account(s). Your Account(s) is/are subject to termination if you or anyone using your Account(s) violates the Terms of Service.

 

MEMBERSHIP FEES, PAYMENT AND TRIAL MEMBERSHIPS. 

Certain Services and Content may require the payment of fees. You must pay all applicable fees, as described on the Site in connection with the Services and Content that you select. The Company reserves the right to change its fees, and institute new charges at any time, upon ten (10) days prior notice, which may be sent by email or posted on the Site. Your use of the applicable Services or Content following such notification constitutes your acceptance of any new or increased charges or other changes. If any such new or increased charges or other changes are unacceptable to you, you may cancel your membership or your subscription to any Services or Content at any time by accessing the “My Account” link on the Site. However, the Company is not obligated to refund any fees that have accrued to your Account(s) before the cancellation. Additionally, the Company will not prorate any fees.

Fees may be based on one-time or monthly payments as more fully described on the Site. You may pay fees with a valid credit card that is under your own name or that you are authorized to use for such purpose. Recurring fees paid by credit card will automatically debit, unless you affirmatively cancel your membership prior to the beginning of the next applicable period to which the membership corresponds. For each month that your membership is active, you acknowledge and agree that the Company is authorized to charge the same credit card for the membership fee. You agree to promptly notify the Company of any changes to your credit card while any membership fee is outstanding.

You are responsible for all applicable fees and charges incurred, and all membership fees incurred by you or anyone that has used your Account(s), including your family and friends. We may process payments using a third-party service provider. In that case, the payment process will be subject to the terms of use and privacy policy of that third-party service provider.

 

TERMINATION AND REFUND POLICY. 

You may terminate Services at any time by clicking the “My Account” link, or emailing us from the contact page of the site. Company may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms of Service. Any fees paid or accrued hereunder are non-refundable. IF YOU DISPUTE ANY CHARGES, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS FROM THE DATE OF THE CHARGE; failure to notify us within this time will result in the waiver by you of any claim relating to any such disputed charge.

 

EFFECT OF TERMINATION. 

Upon termination of an Account(s), the applicable user’s right to use the Services, access the Site, and any Content as provided in the Terms of Service will immediately cease. All provisions of the Terms of Service, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, medical disclaimer, limitations of liability and miscellaneous.

 

CONSENT TO RECEIVE EMAIL. 

If you register to use the Site and Services, you hereby consent to receive periodic email communications from the Company, including emails regarding customer service issues, new product announcements, and other matters. You may choose to opt out of certain email correspondence; however, the Company reserves the right to email you at any time regarding issues related to your Account(s) and your use of the Site and Services.

 

YOUR CONDUCT. 

By using the Site or Services, including any group, forum, blog or email function of the Site, you agree not to:

 -  post or transmit any unlawful, harmful, threatening, abusive harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that
would constitute criminal offense, violate the rights of others, or otherwise violate any applicable local, state, national or international law.

 -  impersonate any person or entity, including, for example, a Company employee or officer, a Site leader, or falsely state or otherwise misrepresent your affiliation with a person or entity.

 -  post messages that infringe on any patent, trademark, trade secret, copyright, or other proprietary rights of any party. You agree to give attribution to others when you quote or paraphrase materials owned by others.

 -  upload files, or cause other users to upload files that contain viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of another’s computer.

 -  conduct contests, distribute chain letters, or conduct “pyramid schemes” or “multi-level marketing schemes.”

 -  engage in any advertising that does not adhere to all applicable laws, rules and regulations or that contains claims or representations that are false or that tend to deceive, mislead or misrepresent.

If you suspect that anyone is violating the above rules, you agree to report the suspected violation to us from the contact page of the site.

 

YOUR INTERACTION WITH OTHERS. 

You assume all risk when using the Services and any Content with any online or offline interactions with others, including meeting with others as described or encouraged by any exercise or set made available through the Site (a “Set”). You agree to take all necessary precautions when meeting with any individual offline as described or encouraged by a Set or any other Content.

 

MEDICAL DISCLAIMER. 

The Company’s products and services and all other Content available on the Site, including, without limitation, user-generated Content, are not an attempt to practice medicine or provide specific medical advice and are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Your use of the Site does not establish a doctor-patient relationship. Any health information and links on the Site, whether provided by the Company, users, or outside providers, is provided simply for your convenience and general information. The information, facts and opinions provided are no substitute for professional advice. Always consult your primary care physician for any medical advice, diagnosis or treatment and before undertaking any new diet or exercise plan. The Service and the Site are for informational purposes and should be used in conjunction with health care professionals. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site.

 

ACCESS TO THE SERVICES. 

AS A USER, YOU CERTIFY TO THE COMPANY THAT, IF YOU ARE AN INDIVIDUAL (I.E., NOT AN ENTITY), THAT YOU ARE AT LEAST 18 YEARS OF AGE. You also certify that, if you are an entity, all users of your username and password are at least 18 years of age. Likewise, if you are an entity, you certify that you are authorized to establish an Account(s), access and use the Site and enter into and pay for any subscriptions on behalf of the entity. You also certify that you are legally permitted to use the Services and access the Site, and take full responsibility for the selection and use of the Services and access to the Site. The Terms of Service are void where prohibited by law, and the right to access the Site and Services are revoked in such jurisdictions.

You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and long distance or local telephone service. You will be solely responsible for ensuring that such equipment or ancillary services are compatible with the Services.

Subject to these Terms of Services, the Company may offer to provide certain Services selected by a user through the process provided on the Site, solely for such user’s own personal use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services the Company performs for the user, as well as the offering of any Content on the Site. The Company may change, suspend or discontinue the Services at any time, including the availability of a feature, database, or content. The Company may also impose limits on certain features and Services or restrict a user’s access to parts or all of the Services without notice or liability.

 

LINKS TO OTHER WEB SITES AND SERVICES 

The Site contains links to other websites. The Company is not responsible for these websites and does not control the availability, accuracy, reliability, content, associated links, privacy and security practices, resources, or services associated with a third party site. You agree that the Company shall not be liable for any loss or damage of any sort associated with your use of third-party content. Links and access to these sites are provided for your convenience only and should you choose to access such sites, you acknowledge that you do so voluntarily and AT YOUR OWN RISK.

 

RESTRICTIONS. 

You are solely responsible for all of your activity in connection with the Services and accessing the Site. Any fraudulent, abusive, illegal or otherwise inappropriate activity are grounds for termination of your right to Services or to access the Site. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user.

 

WARRANTY DISCLAIMER. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS AFFILIATES, DIRECTORS, OFFICERS AND/OR EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, THE SERVICES AND THE CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT. USER AGREES THAT USE OF THE SITE, THE SERVICES OR THE CONTENT ARE AT HIS/HER/ ITS OWN SOLE RISK AND THAT THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESSED OR IMPLIED.

THE COMPANY MAINTAINS THE SITE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE SITE. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. YOU AGREE THAT YOUR USE OF THE SITE, THE SERVICES AND THE CONTENT IS AT YOUR OWN SOLE RISK. YOU WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF (OR LOSS OF ACCESS TO OR LOSS OF USE OF) THE SITE, INCLUDING WITHOUT LIMITATION, DAMAGE TO ANY OF YOUR COMPUTERS OR DATA.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE NO RIGHT, BASED IN PROPERTY OR OTHERWISE, TO ANY DATA CREATED THROUGH OR GENERATED BY YOUR ACCESS TO OR USE OF THE SITE AND/OR SERVICES. YOU ACKNOWLEDGE THERE IS A RISK OF DATA LOSS, INCLUDING CATASTROPHIC DISK FAILURE WITH COULD RESULT IN A LOSS OF ALL DATA. YOU AGREE THAT YOU WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH LOSS.

 

LIMITATIONS OF LIABILITY. 

IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, DIRECTORS, OFFICERS AND/OR EMPLOYEES BE LIABLE WITH RESPECT TO THE SITE, THE SERVICES OR THE CONTENT FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY USER THEREOF; (II) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OUR USE OF THE SITE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT ORSERVICE OR SERVICE OFFERED THROUGH THE SITE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OR PRODUCTS OR SERVICES.

YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. YOU UNDERSTAND THAT THE SITE, THE SERVICES AND/OR THE CONTENT WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

 

LIQUIDATION DAMAGES. 

YOU ACKNOWLEDGE AND AGREE THAT IT WOULD BE DIFFICULT TO ASCERTAIN THE EXACT AMOUNT OF DAMAGES THAT COMPANY WOULD SUFFER AS THERESULT OF THE THEFT OF CONTENT, ESPECIALLY IF THE STOLEN CONTENT IS EXPLOITED FOR COMMERCIAL USE ON A WEBSITE OR ANY OTHER DIGITAL MEDIUM. THEREFORE, YOU AGREE THAT, IN THE EVENT YOU STEAL, COPY WITHOUT AUTHORIZATION OR OTHERWISE MISAPPROPRIATE ANY CONTENT, THE COMPANY WILL BE ENTITLED TO RECOVER FROM YOU LIQUIDATED DAMAGES IN THE AMOUNT (A) US$20,000.00 PER GAME, EXERCISE/SET/LETTER, OR APPLICATION AND (B) US$5,000.00 PER GRAPHIC IMAGE AND PER ITEM OF ANY OTHER CONTENT THAT IS STOLEN, COPIED WITHOUT AUTHORIZATION OR OTHERWISE MISAPPROPRIATED. YOU AGREE THAT THESE AMOUNTS REPRESENT REASONABLE, MINIMAL ESTIMATES OF THE DAMAGE THAT COMPANY WOULD SUFFER BUT DO NOT IN ANY WAY LIMIT ACTUAL DAMAGES, IF SO PURSUED. ANY ACTION BY THE COMPANY TO ENFORCE THIS SECTION SHALL NOT BE DEEMED A WAIVER OF COMPANY’S RIGHT TO PURSUE, AT COMPANY’S SOLE DISCRETION, ANY AND ALL OTHER REMEDIES AVAILABLE TO IT UNDER THIS AGREEMENT OR BY LAW.

 

IRREPARABLE INJURY. 

You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by you would cause irreparable injury to Company and would therefore entitle Company to injunctive relief without any additional showing of irreparable injury or harm.

 

INDEMNITY. 

You will indemnify and hold the Company and its directors, officers, employees, agents and representatives harmless, including by paying costs and attorney’s fees, from any claim or demand made by any third party due to or arising out of your access to the Site, your use of the Services, any violation by you of the Terms of Use, or the infringement by you, or any third party using your Account(s), of any intellectual property or other right of any person or entity.

 

PROHIBITED USES. 

Without limitation to other prohibited uses specified elsewhere in this Agreement, you are prohibited from violating or attempting to violate any security feature on the Site or Service, including, without limitation,

 -   accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access;

  - attempting to probe, scan, or test the vulnerability of the Services, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization;

 -  interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;”

 - using the Site or Service to send unsolicited email, including, without limitation, promotions, or advertisements for products orservices;

 - forging any TCP/IP packet header or any part of the header information in any email or in any posting using the Services; or

 - attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company providing the Site or Services. Any violation of the system or network security may subject you to significant civil and/or criminal liability.

 

PRIVACY POLICY. 

As a condition to using the Site, you agree to the terms of our Privacy Policy, which is incorporated into these Terms of Use by this reference. The Privacy Policy may be updated from time to time. You agree that we may access or disclose your personal information, including the content of your communications, if we are required to do so in order to comply with any legal process or governmental request, or as otherwise provided in the Privacy Policy or these Terms of Use.

You should be aware that if you voluntarily disclose personally identifiable information (e.g., User ID, email address) in a forum or in any other user- generated pages, that information can be collected and used by others and may result in unsolicited messages from other parties. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SITE, YOU DO SO AT YOUR OWN RISK. COPYRIGHT POLICY.

All Content and other information available through the Site is either owned or licensed by the Company and is protected by copyright and other intellectual property laws. You may not reproduce, retransmit, disseminate, sell, publish, broadcast, or circulate any Content or other information you obtain from the Site without the express written consent of the Company. You only are entitled to use the Content and other information available through the Site for your personal, non-commercial use, subject to these Terms of Service.

We are committed to upholding the rights of copyright holders. If you are a copyright holder, or an agent of a copyright holder, and you believe that a user posting, submission or other Content infringes upon your copyright, please submit a notification to us. You may do so pursuant to the Digital Millennium Copyright Act by providing the following information to our copyright agent:        

 -  A physical or electronic signature of a copyright owner or an authorized agent of anyone who holds proprietary rights to the material that has been infringed.        

 -  Specific identification of the material claimed to have been infringed.

 -   Specific identification of the material that is claimed to be infringing.

 -  A statement that you believe the use of material, in the way that you have deemed unlawful, is not authorized by the copyright owner or its agent.

 -  A statement that the information in the notification is accurate and that you are authorized to act on behalf of the owner of anexclusive right, under penalty of perjury.

 -  Contact information, such as a street address, telephone number and an email address, so that we can contact you

This information must be sent to our copyright agent by email from the contact page of the site.  

FILTERING. 

Pursuant to 47 U.S.C. § 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). We do not endorse any of the products or services listed at these web sites.

 

SEVERABILITY; WAIVER. 

If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the our original intent and will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable. The remaining portions will remain in full force and effect. A waiver by either party or any term or condition of this Agreement or any breach of this Agreement, in any one instance, will not waive such term or condition or any subsequent breach.

 

REQUIREMENT OF ARBITRATION. 

BY USING THE SITE OR SERVICES, OR DOWNLOADING CONTENT FROM OR REGISTERING FOR THE SERVICES, YOU THEREBY AGREE WITH COMPANY THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND COMPANY WILL RESOLVE ANY ARBITRAL CLAIMS (AS DEFINED BELOW) BY BINDING ARBITRATION THROUGH THE JUDICIAL ARBITRATION AND MEDIATION SERVICES IN SEATTLE, WASHINGTON.

AS USED IN THIS AGREEMENT, ANY “ARBITRAL CLAIM’ IS ANY CLAIM OR DISPUTE YOU HAVE AGAINST OR WITH THE COMPANY OR COMPANY INDEMINFIED PARTIES, OR ANY CLAIM THE COMPANY HAS AGAINST OR WITH YOU, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE SERVICES OR ANY ADVERTISING RELATING TO THE SITE OR SERVICES, INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE, BUT SPECIFICALLY EXCLUDING: CLAIMS BY THE COMPANY TO ENFORCE ITS INTELLECTUAL PROPERTY RIGHTS AND/OR TO PREVENT OR REMEDY UNFAIR COMPETITION, MISAPPROPRIATION OF TRADE SECRETS, UNAUTHORIZED ACCESS, FRAUD OR COMPUTER FRAUD, AND/OR INDUSTRY ESPIONAGE.

MOREOVER, NEITHER PARTY IS PRECLUDED FROM SEEKING RELIEF IN A COURT LOCATED IN SEATTLE, WASHINGTON, FOR PROVISIONAL REMEDIES, INCLUDING TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS, AND RECEIVERSHIPS, PENDING ARBITRATION OR COMPREHENSIVE LITIGATION, TO THE EXTENT AUTHORIZED ABOVE.

BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ARE FURTHER AGREEING WITH COMPANY THAT NEITHER YOU NOR THE COMPANY WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; AND THAT NEITHER YOU NOR THE COMPANY WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE.

BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ALSO ARE AGREEING WITH THE COMPANY THAT YOU AND THE COMPANY HEREBY WAIVE THE RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF FOR ANY REASON THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGIANST YOU, COMPANY OR A COMPANYHINDEMNIFIED PARTY, BOTH YOU AND THE COMPANY STILL AGREE TO WAVIE TRIAL BY JURY FOR THAT ARBITRAL CLAIM.

 

MISCELLANEOUS. 

The failure of either party to exercise in any respect any right provided for in the Terms of Service shall not be deemed a waiver of any further rights hereunder. The Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). The Company may freely assign the Terms of Service. The Terms of Service shall be governed by and construed in accordance with the laws of the state of Washington without regard to any conflict of laws principles.

You further consent to the personal jurisdiction of and exclusive venue in the federal and state courts located in and serving KingCounty, Washington, as the legal forum for any dispute arising out of the Terms of Service and/or your access to or use of the Site and not precluded as an Arbitral Claim.

These Terms of Use (together with the terms of our Privacy Policy, which are understood to be incorporated into these Terms of Use) constitute the entire agreement between you and the Company and govern your use of the Site and Services, superseding any prior agreements between you and the Company. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other products or services, third-party content or third-party software. In the event of any inconsistency between these Terms of Use and the terms and conditions relating to any specific product or service available through the Site, these Terms of Use shall control.