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Terms & Conditions

Last Modified October 18, 2018

Welcome to our website located at www.emergencemagazine.org (the “Site”) which is made available by Spiritual Ecology, LLC located at 2 Inverness Way, Inverness, California 94937, United States of America. By accessing this website you agree to be bound by the terms described herein and all terms incorporated by reference. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE.

1. ACCEPTANCE OF TERMS

These Terms of Service (the “Terms” or the “Agreement”) are between you (“user”, or “you”) and Spiritual Ecology, LLC (“SE”, “we”, or “us”) and describe the terms and conditions that govern your use of the Site. The Terms apply to your use of all or part of the Site, and any other site or online service where these Terms are posted. You must agree to these Terms, and all terms incorporated by reference, to create an Account (as described below) and to access or use any part of the SE Site. If you do not agree with these Terms, do not create an Account or use the SE Site.

1.1 MODIFICATION OF TERMS

From time to time SE may need to make changes to this Agreement and we encourage you to review these Terms regularly. Any changes or modifications will be effective immediately upon posting the revisions to the Site. Your continued use of the Site means that you accept all modified Terms. If material changes to these Terms are made, we will notify you by posting a notice on the Site, posting an updated version of these Terms, or by sending you notice by email. Notwithstanding the foregoing, additional terms may apply to certain products or services. In the event of a conflict between these Terms and any additional terms, the new, revised or additional terms will control.

2. USE OF SITE

Using the Site does not give you any rights in the content you access. SE owns all intellectual property rights in and to the content of its Site, except for content submitted to it by users, if any. More specifically, as between you and us, other than content submitted to the Site by users, we own, solely and exclusively, all rights, title and interest in and to the Site, all the content, code, data, and materials, the look and feel, design and organization of the Site, and the compilation of the content, code, data, and materials on the Site, including, but not limited to, any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights, and other intellectual property and proprietary rights therein. To the extent that we do not own material contained on the Site, including material submitted to the Site by users (see Section 8 below), we have secured a license from the owner or licensor of such material granting us the right to display such content in the manner displayed on the Site. Your use of the Site does not grant to you ownership of any kind in any content, code, data, or materials you may access on or through the Site. Except as provided in these Terms, you agree not to use, modify, reproduce, distribute, sell, license, or otherwise exploit SE’s content without SE’s explicit prior written permission.

2.1 ACCOUNT REGISTRATION

To use certain services you must register for a user Account (the “Account”) through the Site. To be eligible for an Account, you must: (1) be at least 13 years of age at time that you register; (3) have an active, valid e-mail address; and (4) provide certain information about yourself as prompted through the registration process. Minors under age 13 may utilize the website only with the consent and involvement of a parent or legal guardian.

By registering for an Account and using the Site, you consent to receiving electronic communications from SE relating to your Account. Your Account will remain active unless and until you choose to inactivate or cancel it, or unless we terminate it.

2.2 USER RESPONSIBILITIES

When you register or provide any information in connection with your Account, you agree to provide accurate, current, and complete information, and to promptly update this information to maintain its accuracy. You further agree that you will not provide any false personal information or create an Account for anyone other than yourself without SE’s express prior written consent.

You are responsible for maintaining the confidentiality of any login information associated with your Account, including any password or username, and you are responsible for all activities that occur under your login information and Account. You agree to use “strong” passwords (meaning passwords that use a combination of lower case and upper case letters, numbers and symbols) in connection with your Account. You further agree to immediately notify SE if you suspect any unauthorized use of your login information, Account, or any other breach of security.

2.3 ASSIGNMENT

You acknowledge and agree that SE services are unique to you and you may not assign or otherwise transfer your Account to any other person or entity.

2.4 MODIFICATION OR DISCONTINUATION OF SERVICES

SE reserves the right to modify or discontinue, temporarily or permanently, the Site or its services, or any features or portions thereof without prior notice. You agree that SE will not be liable for any modification, suspension or discontinuance of the Site, or any part thereof.

3. COMMUNICATIONS

When you create an Account or otherwise provide your contact information to us, you agree to receive communications from us related to your inquiry, Account, or use of the Site, including via postal mail or e-mail. Communications from SE may include but are not limited to, updates regarding new or existing content or features of the Site. Please review our Privacy Notice for information about how to exercise your choices regarding the types of communications you receive from us.

4. PROHIBITED USE

Any commercial or promotional distribution, publishing, or exploitation of the Site, or any content, code, data, or materials on the Site, is strictly prohibited unless you have received the express prior written permission from authorized personnel of SE or the otherwise applicable rights holder. Other than as expressly allowed herein, you may not download, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell, or otherwise exploit any content, code, data, or materials on or available through the Site. You further agree that you may not alter, edit, delete, remove, otherwise change the meaning or appearance of, or repurpose any of the content, code, data, or other materials on or made available through the Site (this includes, without limitation, the alteration or removal of any Trademarks (as defined in Section 11.1 below) or any other proprietary content or proprietary rights). If you make other use of the Site, or the content, code, data, or materials thereon, except as otherwise provided above, you may be subject to liability for such unauthorized use, including, without limitation, for violations of copyright, trademark, and other applicable laws.

5. PROHIBITED USER CONDUCT

To protect our users from Prohibited Activities, as described below, we reserve the right, but are not obligated, to take appropriate actions, including by restricting or terminating the Account of a user who in our sole and absolute judgment violates any of these Terms. To protect the integrity of the Site, we reserve the right to block users from certain IP addresses from accessing the Site.

To keep the Site safe and accessible, you agree that you will not use the Site or your Account to harm SE or anyone else, interfere with the Site, or use the Site in a manner that violates the law (“Prohibited Activities”). Without limiting the foregoing, you shall not:

  • Encourage or facilitate any violation of these Terms.
  • Engage in any unlawful, misleading, malicious, or discriminatory activity.
  • Post, send, or otherwise communicate content that is harassing, intimidating, bullying, unlawful, defamatory, obscene, pornographic, indecent, lewd, suggestive, threatening, contains nudity, is hate speech, or incites violence.
  • Create a false identity or Account for the purpose of misleading others.
  • Attempt to register for a new Account if we have terminated your Account.
  • Post or make available content that infringes any copyright, trademark, trade secret, patent, or other intellectual or proprietary right of SE or any third party.
  • Harvest, scrape, or otherwise collect, store, or manipulate any information from the Site, including the personal information of other users without the express prior written consent of such users and of SE.
  • Solicit, collect, transmit, store, or disclose any personal information of any third party.
  • Use the Site to send spam, direct marketing communications, or any other unsolicited advertising or promotional materials.
  • Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt, or otherwise interfere with any software that is part of the Site.
  • Upload or transmit any software, material, malware, or communication that is harmful to our users’ computers, devices or systems, or that contains a virus.
  • Otherwise misuse or misappropriate any content of the Site, including but not limiting to, using it in whole or in part, on any “mirrored,” competitive, or other site.

6. RIGHT TO MONITOR

SE reserves the right, but does not and shall not have an obligation, to monitor and/or to review all materials posted to the Site or through the Site’s services or features by users, including Submitted Materials. SE is not responsible for any failure to monitor, review, and/or delete any materials posted to the Site or through the Site’s services or features by users. However, SE reserves the right at all times to disclose any information as necessary or advisable to satisfy any law, regulation, or government request, and to edit, to refuse to post, or to remove any information or materials, in whole or in part, that, in SE’s sole discretion, are in violation of these Terms or applicable law. We may also, without notice or liability, impose limits on certain features of the Site or restrict your access to part or all of the Site without notice or penalty if we believe you are in breach of the guidelines set forth in our Terms or in violation of applicable law.

8. TERMINATION

In our sole and absolute discretion, SE may discontinue or prohibit use of the Site or may restrict, suspend, or terminate the Account associated with any user who violates any provision of these Terms, or who interferes with the operation of the Site. Such prohibition, discontinuation, restriction, suspension or termination may occur with or without notice to you. If we disable or terminate your Account, you agree not to create another Account without SE’s permission. SE also reserves the right to seek all remedies available at law and in equity for violation of these Terms.

If you believe another user is violating any of these Terms, please notify SE. We reserve the right to investigate any user suspected of violating these Terms and may gather information about that user and/or the complaining party, if any, and examine any material in the Site. In addition to the foregoing investigation rights, you hereby expressly authorize SE to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; and/or (ii) system administrators at other Internet service providers, network or computing facilities and/or any other third party to enforce these Terms or comply with any applicable law. Such cooperation may include provision of your username, IP address, or other identifying information.

Upon suspension, termination, or discontinuation of the Site or your Account, the following provisions of these Terms will survive: 5, 6, 11, 13, 17, 20, 21, 22, 23.

9. LIMITED LICENSE

SE grants you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to access the Site and use the content owned or licensed by SE. You may access and view the content on the Site and make single copies or prints of the content on the Site, at your own risk and for your personal, non-commercial, and internal use only. Use of the Site and the products and services offered by the Site, are only for your personal, non-commercial use. You may not use the Site for commercial purposes or in any way that is unlawful, harassing, or intimidating, or harms us or any other person or entity, as determined in our sole discretion. Notwithstanding the foregoing, SE permits the sharing of all content on the Site through embeds, social media, and links as long as SE is properly credited and the use of the films is in accordance with this Terms of Use.

10. LINKING TO THE SITE

You agree that if you include a link from any other site to the Site, such link shall link to the full version of an HTML formatted page of the Site. You are not permitted to link directly to any image hosted on the Site or our services via the Site, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another Site. You agree not to link from any other site to this Site in any manner such that the Site, or any page of the Site, is “framed,” surrounded, or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Site be discontinued, that the link opens in a new browser window, and/or to revoke your right to link to the Site from any other site at any time upon written notice to you.

11. INTELLECTUAL PROPERTY

11.1 TRADEMARKS

The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed on the Site, or on content available through the Site, are registered and unregistered Trademarks of ours and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders, or that are likely to cause customer confusion, or in any manner that disparages or discredits the rights holders. All Trademarks not owned by us that appear on the Site or on or through the Site’s services, if any, are the property of their respective owners. Nothing contained on the Site grants, by implication, estoppel, or otherwise, or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Trademarks displayed on the Site without our written permission or that of the third party rights holder.

11.2 COPYRIGHT

The content contained in and related to the Site is protected under the copyright laws of the United States and other countries. You acknowledge that all copyrights and other intellectual property rights related to the Site are owned, as between the Parties, solely and exclusively by SE, to the full extent permitted, and are protected, under the United States Copyright Act, international copyright laws, and all other applicable laws. Except as otherwise explicitly permitted in these Terms, you may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works, transmit or in any way use or exploit any SE content on the Site without SE’s express prior written consent.

11.3 DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE

We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. Our designated copyright agent for notice of alleged copyright infringement appearing on the Site is:

Anne Hiaring Hocking
Donahue Fitzgerald LLP
Suite 3E
80 East Sir Francis Drake Blvd.
Larkspur, California 94939
United States of America
Email: trademarks@donahue.com

If you believe that your work has been reproduced or distributed in a way that constitutes copyright infringement or are aware of infringing material available through the SE Site, please notify us by emailing us at trademarks@donahue.com with the subject line “DMCA Takedown Request” and include the following requirements pursuant to 17 U.S.C. § 512(c)(3) of the Digital Millennium Copyright Act (“DMCA”):

1. A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at the SE Site are covered by a single notification, a representative list of such works at the Site.
3. Identification of the material that is claimed to be infringing, or to be the subject of infringing activity, and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SE to locate the material. Providing URLs is the best way to help SE to quickly locate the offending content.
4. Information reasonably sufficient to permit SE to contact you, such as an address, telephone number, and if available an email address at which you may be contacted.
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. 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.

We will process each notice of alleged infringement that we receive and take appropriate action with respect to applicable intellectual property laws. Please note that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages under Section 512(f) of the DMCA.

If, pursuant to the receipt of a copyright notice as set forth above, or otherwise, we remove or disable access to content, and you feel that the removal or disabled access was in error, you may send us a counter-notice. If you elect to send us a counter-notice, you must provide a written communication to SE’s designated agent (see above) that includes substantially the following:

1. Either a physical or electronic signature of the submitter.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement, under penalty of perjury, that the submitter has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The submitter’s name, address and telephone number and a statement that the submitter consents to the jurisdiction of the Federal Court, Northern District of California, and that the submitter will accept service of process from the person who provided the notice under the DMCA of alleged infringement, or an agent of that person.

We reserve the right to remove content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, SE will also terminate a user’s Account if the user is determined to be a repeat infringer.

11.4 PROTECTION OF IP RIGHTS AND CONFIDENTIAL INFORMATION

Notwithstanding any other provision of the Agreement, SE may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.

12. SUBMISSION OF CONTENT TO THE SITE

Unless specifically requested, or submitted by you in accordance with our Submission Guidelines, we do not solicit, nor do we wish to receive, any confidential, secret, or proprietary information from you through the Site, via our social media feed that may be incorporated into the Site, by email, or in any other way. Any materials submitted by you, including all creative works (including, without limitation, text, photographs, graphics, audio, visual, and audiovisual content), demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques, or other materials (including, for example and without limitation, content that you submit or post to any message boards, review/ratings boards, and/or our blogs, social media sites, or send to us via email) (collectively, “Submitted Materials”) will be deemed not to be confidential or secret, and may be used by us in any manner consistent with the Privacy Notice.

By submitting or sending Submitted Materials to us, you: (i) represent and warrant that the Submitted Materials are not confidential or secret, and no confidential or fiduciary relationship is intended or created between you and us in any way; and, you (ii) represent and warrant that the Submitted Materials are original to you, that no other party has any rights thereto, and that any “moral rights” in Submitted Materials have been waived, or that you have the copyright owner’s written permission to use any Submitted Materials.

You retain ownership of any intellectual property rights you have in your own Submitted Materials, but, except for those materials submitted by you in accordance with our Submission Guidelines, by uploading Submitted Materials to the Site, you are granting SE and our affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable, and sub-licensable right and license to use, host, store, copy, reproduce, modify, adapt, print, publish, translate, create derivative works or new works such as translations from, distribute, publish, publicly perform, display, and distribute such content (in whole or part), and/or to incorporate the content in other works in any form, media, or technology now known or later developed, including for promotional and/or commercial purposes, and to authorize others to do so.

If you submit a photograph to the Site, you also agree to, represent, and warrant the following: (i) you have the rights necessary to authorize us to use the photograph as permitted by these Terms of Use; (ii) you authorize us to use the photograph as permitted by these Terms of Use; (iii) you have obtained the necessary permissions, if any, for us to use the photograph in accordance with the Terms of Use; and (iv) the photograph has not been manipulated or altered in any manner so as to distort or misrepresent any individual or thing depicted in it.

Except for that content that is submitted by you in accordance with our Submission Guidelines, you hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments, and waivers set forth in these Terms.

SE will not accept responsibility for any information included in any Submitted Materials created, transmitted, or posted by users (for example, without limitation, websites, tweets, blog posts, or any comments to blog posts created or posted by users). Such content is the sole responsibility of the individual or entity that makes it available on the Site. You alone are responsible for the content and consequences of any and all of your activities, and you submit Submitted Materials at your own risk. You don’t have any claims against SE for any Submitted Materials. We also cannot be responsible for maintaining any Submitted Materials that you provide to us. We may delete or destroy any Submitted Materials at any time, in our sole discretion.

SE will take down all content that violates another’s rights, including their copyrights, pursuant to the provisions of the DMCA Notice in Section 9.3.

SE assumes no responsibility for intellectual property infringement of Submitted Materials by third parties.

13. FEEDBACK SUBMITTED

We welcome your feedback, however, you agree that SE is free to use any comments, information, ideas, concepts, reviews, techniques, or any other material contained in any communication you may send to us (“Feedback”), worldwide and in perpetuity without acknowledgement, compensation, or payment to you.

14. PRIVACY

For information about SE’s collection and use of your personal information, please read our Privacy Notice.

15. LINKS TO EXTERNAL SITES

For your convenience, we may provide links to other third party websites or destinations (“Third Party Sites”). You should not infer or assume that SE operates, controls, or is otherwise connected with these other Third Party Sites. These Terms do not govern your use of any other website or destination and we will not warn you that you have left the SE Site. When you click on a link within the Site and are redirected to a Third Party Site, you will be subject to the terms and conditions of that other website or destination. We encourage you to read the terms of service of any other Third Party Site that you visit before you provide any personal information.

16. INQUIRIES & SUPPORT

If you need assistance or have questions about the Site or your Account, you may contact us by email, or postal mail at:

Email: hello@emergencemagazine.org

Postal Mail:
Emergence Magazine
Spiritual Ecology LLC
2 Inverness Way
Inverness, California 94937

You acknowledge that by contacting us we may send you a communication related to your request.

17. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY; AND INDEMNIFICATION

SE is not responsible for the conduct, whether online or offline, of any user of the Site. We do not control or vet user generated content for accuracy nor do we assume any responsibility for the accuracy or reliability of any information provided by users whether on the Site or offline. SE does not assume and expressly disclaims any liability that may result from the use of information that may be provided through SE’s Site or user Accounts. You hereby expressly agree not to hold SE, or its members, officers, directors, shareholders, employees, or other affiliates (collectively the “SE Parties”) liable for the actions or inactions of any SE Party or other third party for any information, instruction, advice, or services which originated through SE’s Site or user Accounts, and the SE Parties expressly disclaim any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.

You accept full responsibility for your own safety and YOU EXPRESSLY ASSUME ALL RISK OF LOSS, PROPERTY DAMAGE, OR PERSONAL INJURY, INCLUDING DEATH, WHETHER FORESEEN OR UNFORESEEN, which you may sustain as a result of your use of the SE Site, including damage or loss resulting from the negligence of SE or its employees or authorized agents. You understand and have been advised that you may have rights under CALIFORNIA CIVIL CODE SECTION 1542 which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” YOU EXPRESSLY WAIVE ANY RIGHTS CONFERRED UNDER THIS CODE SECTION and agree that this agreement shall apply to all unknown or unanticipated risks associated with the Site as well as known or anticipated risks.

YOU AGREE THAT YOUR USE OF THE SITE IS AT YOUR OWN RISK. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, THE SE SITE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALTIES ASSOCIATED WITH THE SITE ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE. YOU AGREE THAT SE IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS. BECAUSE THE LAWS OF SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED OR STATUTORY WARRANTIES, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL SE OR ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, OR EMPLOYEES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE SE PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OF USE OR YOUR USE OF THE SITE AND/OR THE SERVICES PROVIDED VIA THE SITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO SE FOR YOUR USE OF THE SITE, INCLUDING THE SERVICES PROVIDED VIA THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SE OR ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, OR EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SITE (INCLUDING OUR USE OF YOUR CONTENT). SE RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

18. THIRD PARTY BENEFICIARY

These Terms specifically are not intended to constitute a third party beneficiary contract and therefore shall not be construed to be for the benefit of any person or entity not a Party hereto, and no such person or entity shall have any claim or right of action under this agreement.

19. INDEPENDENT CONTRACTORS

You and SE (each a “Party”, together, the “Parties”) agree that each Party are independent contractors to the other Party in connection with its use of the Site and in its performance of its obligations under these Terms. Neither Party will be entitled to, or will attempt to, create or assume any obligation, express or implied, on behalf of the other Party. These Terms will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the Parties or to impose any partnership obligation or similar liability arising therefrom upon either Party.

20. ARBITRATION

ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, INCLUDING THE FORMATION, INTERPRETATION, BREACH OR TERMINATION THEREOF, INCLUDING WHETHER THE CLAIMS ASSERTED ARE ARBITRABLE, WILL BE REFERRED TO AND FINALLY DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE JAMS INTERNATIONAL ARBITRATION RULES. THE TRIBUNAL WILL CONSIST OF A SOLE ARBITRATOR. THE PLACE OF THE ARBITRATION WILL BE IN MARIN COUNTY, CALIFORNIA. THE LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS WILL BE ENGLISH. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF.
THE PARTIES SHALL MAINTAIN THE CONFIDENTIAL NATURE OF THE ARBITRATION PROCEEDING AND THE AWARD, INCLUDING THE PRIVACY OF THE 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 REMEDY, A JUDICIAL CHALLENGE TO AN AWARD OR ITS ENFORCEMENT, OR UNLESS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION. IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) MAY NOT AWARD ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS.

IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) SHALL AWARD TO THE PREVAILING PARTY, IF ANY, THE COSTS AND ATTORNEYS’ FEES REASONABLY INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH THE ARBITRATION. IF THE ARBITRATOR(S) DETERMINE A PARTY TO BE THE PREVAILING PARTY UNDER THE CIRCUMSTANCES WHERE THE PREVAILING PARTY WON ON SOME BUT NOT ALL OF ITS CLAIMS AND COUNTERCLAIMS, THE ARBITRATOR(S) MAY AWARD THE PREVAILING PARTY AN APPROPRIATE PERCENTAGE OF THE COSTS AND ATTORNEYS’ FEES REASONABLY INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH THE ARBITRATION.

21. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the State of California in the United States of America, notwithstanding any conflict of law rules. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE COURTS IN OR FOR MARIN COUNTY, CALIFORNIA, AND FEDERAL DISTRICT COURT IN THE NORTHERN DISTRICT OF CALIFORNIA FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES ARISING UNDER THIS AGREEMENT.

22. SEVERABILITY

If any provision of these Terms of Service is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.

23. MISCELLANEOUS

No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term, and SE’s failure to assert any right under these Terms of Use shall not constitute a waiver of such right or provision. These Terms: (i) are drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting Party; (iii) use, though strictly for convenience, various titles and headings which shall not affect interpretation of these Terms; (iv) set forth the Parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the Parties’ prior agreements, writings, commitments, discussions and understandings; (v) and any right or obligation set forth in these Terms can only be amended, modified, or waived in a writing signed by SE, or as otherwise noted herein; and (vii) shall bind (and inure to the benefit of) the Parties, and the Parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” shall be deemed to mean “including, but not limited to,” regardless whether such term is initially capitalized and notwithstanding any conflicting provision of these Terms. YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.