Last Modified: 9/4/2019
Please read this Agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1. Our Service
This is a contract between you and Aerion. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Aerion, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Aerion.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Aerion reserves all rights not expressly granted herein in the Service and the Aerion Content (as defined below). Aerion may terminate this license at any time for any reason or no reason.
1.3 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Aerion servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Aerion grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or that we, in our sole discretion, determine may impose an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.4 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason, without any liability for such termination or suspension. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.5 Disputes with Other Users
You are solely responsible for your interactions with other Users (if any). We reserve the right, but have no obligation, to monitor disputes between you and other Users. None of Aerion or its officers, directors, employees, agents, subsidiaries and affiliates (collectively, the “Aerion Parties”), or the officers, directors, employees, agents, subsidiaries and affiliates of the Aerion Parties) shall have liability for your interactions with other Users, or for any User’s action or inaction.
1.6 Service Location
The Service is controlled and operated from facilities in the United States. Aerion makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so of their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
2. User Content
Some areas of the Service may allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Aerion a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness if contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Aerion’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
· You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
· You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
· Your User Content and Aerion’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
· Aerion may exercise the rights to your User Content granted under this Agreement without liability for payment of any kind, including but not limited to guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
Aerion and the Aerion Parties shall have no responsibility and assume no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing, sharing, or otherwise making it available on the Service. You agree that Aerion and the Aerion Parties shall not be liable for any damages arising out or relating to any User Content, including any damages alleged by you as a result of or relating to your User Content.
3. Our Proprietary Rights
Except for your User Content, you acknowledge and agree that Aerion is the exclusive owner of the Service and, except to the extent that portions of the Service are licensed by Aerion from third parties, all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music (the “Aerion Content”), and all Intellectual Property Rights related thereto, belong exclusively to Aerion. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Aerion Content or from any User Content without Aerion’s prior written consent. For media inquiries, please contact: firstname.lastname@example.org. Use of the Aerion Content or any User Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting Ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Aerion under any fiduciary or other obligation, and that we are free to use the Ideas without any compensation to you, and/or to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Aerion does not waive any rights to use similar or related ideas previously known to Aerion, the Aerion Parties or our suppliers or licensors, or obtained from sources other than you.
4. No Professional Advice
If the Service provides professional information (for example, technical, medical, legal, or financial information), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified to render such advice in the applicable area.
Aerion cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. DMCA Notice
Since we respect artist and content owner rights, it is Aerion’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Aerion’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Aerion to contact you, such as your address, telephone number, and, e-mail address;
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 law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Agent
Address: 5190 Neil Rd., Suite 500
Reno, NV 89502
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Aerion and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Aerion’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Aerion has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Aerion may also at its sole discretion limit and/or terminate access to the Service for any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
8. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Aerion, the Aerion Parties, and Aerion suppliers and licensors, including the affiliates, agents, directors, officers, employees, suppliers, and licensors of such parties, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorneys’ fees) arising from: (i) your use of and access to the Service, including any data or content (including User Content) transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your User Content or any other content that you submit including, without limitation, misleading, false, or inaccurate information; or (vi) your willful misconduct.
10. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement, as to the service or the Aerion Content disclosed therein. No advice or information, whether oral or written, obtained by you from Aerion or through the Service, including any Aerion Content, will create any warranty not expressly stated herein. Without limiting the foregoing, Aerion and the Aerion Parties do not warrant that the service or the Aerion Content is accurate, reliable or correct; that the Service or Aerion Content will meet your requirements; that the Service or Aerion Content will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service or Aerion Content is free of viruses or other harmful components. Any Aerion Content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damages you incur, including but not limited to damages to your computer system or mobile device or loss of data that results from such download or your use of the Service or the Aerion Content.
The Service and Aerion Content contain various combinations of text, images, audiovisual productions, opinions, statements, facts, articles or other information created by us or by third-parties. Due to the nature of the Service and the Aerion Content, the number of sources for same and the passage of time, the Service and Aerion Content may be or become unreliable or inaccurate, due to delays in updating same, omissions from same or for other reasons. Accordingly, the Service and Aerion Content are for your reference only, do not include a promise, warranty or representation by Aerion as to the reliability or accuracy of any particular facts or circumstances, are not subject to any duty to update on the part of Aerion and should not be relied upon by you for any purpose. Further, Aerion does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Aerion will not be a party to or in any way monitor any transaction between you and third-party providers of products or services. Internet pages, investor relations releases, outlooks, presentations, audio and video files of events (live or recorded) and other Aerion Content contain among other things forward-looking statements that reflect Aerion’s current views with respect to future events. The words “anticipate”, “assume”, “believe”, “estimate”, “expect”, “intend”, “may”, “plan”, “project” and “should” and similar expressions identify forward-looking statements. Such statements are subject to risks and uncertainties, including, but not limited to: changes in product design, changes in currency exchange rates, interest rates and in raw material prices; and introduction of competing products.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
11. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Aerion, the Aerion Parties, or their suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of, in connection with, or relating to the use of, or inability to use, the Service, even if Aerion has been advised of the possibility of such damages. Under no circumstances shall Aerion, the Aerion Parties or their suppliers or licensors be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, Aerion assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of Aerion Content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any Aerion Content or for any loss or damage incurred as a result of the use of any Aerion Content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Aerion, the Aerion Parties or their suppliers or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, warranty, negligence, strict liability, or any other basis.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law
This Agreement shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New Castle County, Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our data security, copyrights, trademarks, trade secrets, patents, or other proprietary or Intellectual Property rights, including any provisional relief required to prevent irreparable harm. You agree that the state and federal courts in New Castle County, Delaware will be the sole and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Aerion. For any dispute with Aerion, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Aerion has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Washoe County, Nevada, unless you and Aerion agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Aerion from seeking injunctive or other equitable relief in a court of competent jurisdiction pursuant to Section 12.1 to prevent the actual or threatened infringement, misappropriation, or violation of our data security, copyrights, trademarks, trade secrets, patents, or other proprietary or Intellectual Property Rights, including any provisional relief required to prevent irreparable harm.
12.3 Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and Aerion are each, to the maximum extent permitted by law, waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Aerion without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2 Notification Procedures and Changes to the Agreement
13.3 Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Aerion in connection with the Service, shall constitute the entire agreement between you and Aerion concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
13.4 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Aerion’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.