TABLE OF CONTENTS
- DISPUTE RESOLUTION; ARBITRATION AGREEMENT
- OWNERSHIP OF SITE CONTENT
- YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
- SOCIAL DISTRIBUTION AND WIDGETS
- REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
- INFORMATION AND CONTENT YOU SUBMIT
- USER INTERACTIONS AND DISPUTES
- ACCEPTABLE USE POLICY: COMMUNITY USAGE RULES
- MEMBERSHIP, REGISTRATION & ACCESS CONTROLS
- THIRD PARTY LINKS, CONTENT AND APPLICATIONS
- LINKING POLICY
- DISCLAIMER OF WARRANTIES WAIVER
- LIMITATION OF LIABILITY; WAIVER
- LOCATION OF SITES AND TERRITORIAL RESTRICTIONS
- GOVERNING LAW; COMMENCEMENT OF ACTIONS
- OUR RIGHT TO UPDATE THESE TERMS
DISPUTE RESOLUTION; ARBITRATION AGREEMENT
IF YOU OR WE HAVE ANY DISPUTE WITH OR CLAIM AGAINST THE OTHER (A “CLAIM”) ARISING OUT OF OR RELATING IN ANY WAY TO THE PRODUCTS OR SERVICES OR THESE TERMS, AND THE CLAIM IS NOT RESOLVED BY CALLING OUR CUSTOMER SERVICE DEPARTMENT AT (800) 223-2336AND BY FOLLOWING THE INFORMAL DISPUTE RESOLUTION PROCEDURE SET FORTH BELOW, YOU AND WE EACH AGREE TO RESOLVE SUCH DISPUTES THROUGH AN INDIVIDUAL BINDING ARBITRATION OR AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. Class arbitrations and class actions are not permitted, and a Claim may not be consolidated with any other person’s claim. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. You and we agree that any arbitrations between you and us will be subject to this Dispute Resolution; Arbitration Agreement Section and not to any prior arbitration agreement you had with us. This Dispute Resolution; Arbitration Agreement Section shall survive termination of these Terms.
- Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure
Before a party commences an arbitration or files a small claims court action with respect to a Claim, the party must first send to the other a written notice of dispute (“Notice”). A Notice from you to us must (1) be sent by certified mail; (2) be addressed to: Simon & Schuster, Inc., 1230 Avenue of the Americas, New York, NY 10020, Attn: Legal Department (the “Notice Address”); (3) contain your name, address, and email address; (4) describe the nature and basis of your Claim; (5) if you are submitting the Notice, include any relevant facts regarding your use of the products or services, including without limitation whether you have created an account; (6) specify the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation of them; and (7) include a personally signed statement from you (and not your counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure Section. All of the requirements of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure are essential so that you and we have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure. If the arbitration is already pending prior to the completion of the Mandatory Pre-Arbitration Notice and Information Dispute Resolution Procedure, the arbitration shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure in arbitration.
- Arbitration Procedure
Any such arbitration shall be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”), as modified by this Dispute Resolution; Arbitration Agreement Section (the “Arbitration Agreement”), and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.com, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the requirements referenced in the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure Section and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues, including the scope and enforceability of this Arbitration Agreement, are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and us and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and we agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in this Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law.
In circumstances in which the NAM Rules provide for an in-person hearing, such hearing will take place in the U.S. county (or parish) of your residence, or otherwise in New York, New York. If the Mass Filing process described in the Severability Section is triggered, then the location of any hearing will be determined by the arbitrator.
- Discovery During Arbitration
The parties shall each be limited to a maximum of one (1) fact witness deposition per side, unless the arbitrator determines that more depositions are warranted based on the totality of circumstances, including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as “all documents directly or indirectly related to”; and shall not be encumbered with extensive “definitions” or “instructions.” The Arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
Electronic discovery, if any, shall be limited as follows. Absent a showing of compelling need: (i) electronic documents shall only be produced from sources used in the ordinary course of business, and not from backup servers, tapes or other media; (ii) the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the requesting party and convenient and economical for the producing party; (iii) the parties need not produce metadata, with the exception of header fields for email correspondence; (iv) the description of custodians from whom electronic documents may be collected should be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute; and (v) where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator may either deny such requests or order disclosure on the condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.
Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
- Offer of Settlement
In any arbitration between you and us, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
- Mass Filing
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings (“Mass Filing”) set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules,” available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure Section, until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for S&S shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and S&S shall pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for S&S shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and S&S shall pay the mediator’s fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for S&S shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
Option One: You and S&S may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms. You may opt out of arbitration by sending S&S your individual, personally signed notice of your intention to opt out by certified mail addressed to Simon & Schuster, Inc., 1230 Avenue of the Americas, New York, NY 10020, Attn: Legal Department. Such an opt out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. S&S may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree to adjust these deadlines.
Option Two: If neither you nor S&S elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator, as that term is used in the NAM Rules) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with these Terms.
You and S&S agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You S&S acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The other portions of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
OWNERSHIP OF SITE CONTENT
Unless otherwise explicitly specified, all materials that are included in or are otherwise a part of the Sites, including past, present and future versions, domain names, source and object code and the “look and feel” of the Sites ("Site Content") are owned, controlled or licensed by S&S, its subsidiaries or affiliates, and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, and other laws, rules, regulations and treaties.
The Site Content may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, except with the express permission of S&S as is expressly provided in these Terms. Any unauthorized use of the Site Content is prohibited.
YOUR LICENSE TO USE SITE CONTENT ON OUR SITES
You may visit our Sites without further permission from S&S and S&S grants you a limited, personal, non-exclusive, non-commercial, revocable and non-transferable license to download, view and play the Site Content, except as may be specifically restricted by purchase or similar requirements. This license is subject to your full compliance with these Terms. When you download or use the Site Content, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Site Content; and (c) not copy or adapt any object code associated with the Sites or reverse engineer, modify or attempt to discover any source code associated with the Sites, nor allow or assist any third party to do so (whether or not for your benefit). You also agree that you will not, including by use of any robot, scraper, or other data mining technology or process, frame, mask, extract data or other materials from, copy or distribute the Site Content (except as may be a result of standard search engine or Internet browser usage).
REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
You may not use a Site for any purpose or in any manner that infringes the rights of any third party. S&S encourages you to report any content on a Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on a Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), S&S has a designated agent for receiving notices of copyright infringement and S&S follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide S&S's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has 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; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that any content on a Site violates your rights other than copyrights, please provide S&S with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Please send your notice of claims of copyright infringement on or regarding a Site or other complaint regarding alleged violation of rights to S&S’s copyright agent, who can be reached as follows:
Name: Copyright Agent
Mailing Address: Simon & Schuster, Inc., 1230 Avenue of the Americas, 17th Floor, New York NY 10020-8510
Fax: (212) 698-7171
E-mail Address: email@example.com
NOTE: This contact information is for inquiries regarding potential copyright and other infringement only.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers. It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
S&S will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party's intellectual property rights.
INFORMATION AND CONTENT YOU SUBMIT
The Site may provide you the opportunity to post content publicly ("Community Forums"), including, without limitation, on “Discussion Boards” in connection with user reviews or a contest or promotion or through other interactive features on the Sites. The Community Forums allow users to post content (including, without limitation, photographs, writings, pictures, data, questions, comments, and suggestions) and exchange information, ideas and opinions, input data, send e-mails, answer questions, or otherwise communicate with S&S and Site users through the Sites (collectively, "User Content").
You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant S&S the license below. Upon S&S's request, you will furnish S&S any documentation, substantiation or releases necessary to verify your compliance with these Terms.
S&S is not responsible for the substance of any User Content and such User Content does not necessarily reflect the views of S&S. S&S is under no obligation to monitor User Content but may do so in its sole discretion, and may remove or refuse to post any User Content for any reason in its sole discretion.
You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting any information to S&S.
You remain the owner of your User Content, but you acknowledge that S&S must have a license from you in order to accept your User Content. Accordingly, you grant to S&S an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license (but not obligation) to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your User Content for any purpose whatsoever in all formats, on or through any media, technology or device now known or hereafter developed.
You further agree that S&S is free to use any ideas or concepts contained in any User Content for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and services; and creating informational articles, without any payment of any kind to you. You authorize S&S to publish your User Content in a searchable format that may be accessed by users of the Sites and the Internet. To the fullest extent permitted, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
You acknowledge that S&S may be working on or developing material similar or the same in nature to your User Content and that S&S may have received similar or the same intellectual property rights from another party. S&S owes you no obligation connected to your submissions unless you and S&S enter a written agreement to that effect. Any discussion or negotiations between you and S&S regarding your submissions does not constitute recognition of the novelty or originality of your User Content.
You agree that S&S has no obligation to monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees' rights to your User Content. You further acknowledge and agree that S&S will not have any obligation to you with regard to User Content and that S&S may or may not monitor, display or accept your User Content and may delete it at any time.
USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
ACCEPTABLE USE POLICY: COMMUNITY USAGE RULES
When you contribute, upload or otherwise provide User Content to the Sites, you agree to comply with the following Community Usage Rules ("Rules"):
- User Content must be yours. All User Content must be original with you, not copied from someone else's work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Sites and elsewhere.
- No pictures or images of anyone but you and your friends and family. If you choose to upload photos to the Sites, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know but only with their express permission to post it.
- Don't upload third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
- No music. Your User Content may not contain any music unless the work and performance is original to you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
- Keep it relevant. Your User Content should relate to the content on the Sites and should be intended to add to the discussion and community on the Sites.
- Please follow codes of social decency. Express yourself with non-offensive individual self-expression. Be respectful of others' opinions and comments so we can continue to build a community for everyone to enjoy. If you think your User Content might offend someone, chances are it probably will and it doesn't belong on the Sites. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual orientation or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
- Do not use the Sites for commercial purposes. Your User Content may not advertise or promote a product or service except those provided on the Sites. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
- Do not upload User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don't upload or post it. If you do upload or post User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
- No violence. Your User Content may not promote violence or describe how to perform a violent act.
- Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
- Public forum. We hope that you will use the Community Forums to exchange information and content and have discussions with other members. However, please remember that the Community is a public forum and User Content that you post on the Community will be accessible and viewable by other users. Do not post personal information (e.g., full name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
- Don't share other people's personal information. Your User Content may not reveal another person's address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
- Don't damage the Sites or anyone's computers. User Content may not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Sites or any computer system.
In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.
MEMBERSHIP, REGISTRATION & ACCESS CONTROLS
Certain areas of the Sites may require registration or may otherwise ask or require you to provide information to participate. When you choose to provide information to a Site, you agree to provide only true, accurate, current and complete information.
If you register with us, you agree you will not sell or otherwise transfer your membership or any membership rights. S&S reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice.
You agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Sites. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Sites, including, without limitation, those governing your transmission or use of any software or data.
The Site may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor's requirements of you in connection with the applicable sweepstakes or promotion.
THIRD PARTY LINKS, CONTENT AND APPLICATIONS
There may be links from the Sites, or from communications you receive from the Sites, to third party web sites or online features, including third party stores selling or licensing S&S products. When you purchase S&S products or services through such a third party store, your billing relationship will be with the third party and additional terms imposed by the third party may apply to your purchase. The Site also may include third party content that we do not control, maintain or endorse.
Functionality on the Sites may also permit interactions between the Sites and a third party web site or online feature, including applications that connect the Sites or your profile on the Sites with a third party site (including, but not limited to, Facebook). For example, the Sites may include a button enabling you to indicate, on your social networking page, that you “like” a specific product on a Site, or a feature that lets you post to your social networking page a link to Site Content or the ability to share content from the Sites or your User Content posted on the Sites with a third party, which may be publicly posted on that third party’s web site. Using this functionality typically requires you to login to your account on the third party Site. We do not control any of these third party sites or any of their content. Accordingly, you expressly acknowledge that we make no representation or warranties about the completeness, accuracy, or existence of any advertising, products, or other materials on or available from third party sites or online features and any reliance placed by you on such materials is at your own risk. If you choose to use applications that connect a Site or your profile on a Site with a third party site, you acknowledge and agree that you are consenting to the information about your account being shared; and that your use of these third party applications may cause information about you to be publicly disclosed. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SITES INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.
S&S grants you the revocable permission to link to the Sites; provided, however, that any link to the Sites: (a) must not frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (b) must not imply that S&S or the Sites is endorsing or sponsoring any third party or its products or services, unless S&S has given the third party prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in S&S’s sole opinion, harm S&S or its products or services; (d) must not use any S&S trademarks without the prior written permission from S&S; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in S&S's sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, S&S reserves the right to prohibit linking to the Sites for any reason in our sole and absolute discretion.
The Site may offer features and services that are available to you via your mobile device. These features and services may include, without limitation, the ability to upload content to the Sites, receive messages from the Sites, download applications to your mobile phone or access Site features (collectively, the "Mobile Features"). We may charge for Mobile Features and these charges will be disclosed prior to completion of registration for the Mobile Feature. Also, standard messaging, data and other fees may be charged by your carrier. Carrier fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. You agree that the Mobile Features for which you are registered may send communications to your mobile device regarding S&S. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify S&S of any changes to your mobile number and update your account(s) on the Sites to reflect this change. Instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. Typically, you will text a keyword (e.g., "STOP") to the applicable shortcode for the Mobile Feature. In all cases, if you reply STOP to any text message received, you will opt-out from receiving those text messages.
DISCLAIMER OF WARRANTIES WAIVER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, INCLUDING, WITHOUT LIMITATION, THE SITE CONTENT, AND ANY PRODUCTS SOLD OR LICENSED BY S&S THROUGH THE SITE, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, S&S AND ITS PARENT COMPANIES, AFFILIATED ENTITIES, VENDORS AND THE DIRECTORS, OFFICERS, EMPLOYEES OR OTHER REPRESENTATIVES OF EACH OF THEM (COLLECTIVELY, THE "S&S PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES AND THE SITE CONTENT; (B) PRODUCTS SOLD OR LICENSED BY S&S THROUGH THE SITE; (C) USER CONTENT; AND/OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO S&S OR VIA THE SITE. IN ADDITION, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE S&S PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE S&S PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE S&S PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES ARE ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK. THE S&S PARTIES DO NOT WARRANT THAT YOUR USE OF A SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE S&S PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
BY ACCESSING OR USING A SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
THE S&S PARTIES DO NOT ENDORSE USER CONTENT OR COLLABORATIVE CONTENT AND ARE NOT RESPONSIBLE FOR USER CONTENT OR COLLABORATIVE CONTENT.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE S&S PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES RELATED TO: (A) THE SITES OR THE SITE CONTENT; (B) USER CONTENT; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (D) ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE S&S PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (E) ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE SITE'S TECHNICAL OPERATION; OR (G) ANY DAMAGE THAT RESULTS FROM EVENTS BEYOND OUR REASONABLE CONTROL, SUCH AS DAMAGES TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE S&S PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. HOWEVER, IN NO EVENT WILL THE S&S PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO S&S FOR A PRODUCT ORDERED THROUGH THE SITES OR, IN THE EVENT THERE HAS BEEN NO AMOUNTS PAID BY YOU, THE AMOUNT OF TEN UNITED STATES DOLLARS ($10.00). THE PRIOR LIMITATION ON DAMAGES IS NOT INTENDED TO LIMIT THE S&S PARTIES’ OBLIGATION TO PAY PREVAILING PARTY COSTS OR FEES IF RECOVERABLE PURSUANT TO APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE THE S&S PARTIES’ LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY S&S PARTIES, OR FOR THE S&S PARTIES’ GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF S&S'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, BOOK, PROPERTY, PRODUCT, PROGRAM, SERVICE, OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY THE S&S PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER SITE CONTENT OWNED OR CONTROLLED BY THE S&S PARTIES.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Sites may offer products or services for sale or license and your transaction may be subject to additional sales terms and policies. You agree to pay all applicable fees and any applicable taxes. S&S may automatically charge and withhold the applicable sales tax for orders. Otherwise, you are solely responsible for all sales taxes, or other taxes, on orders shipped to you.
Sometimes the Sites may offer products or services for sale or license via an in-app or similar purchase where the transaction is facilitated by the operator of a third party platform hosting the Site. In such cases, your billing relationship will be with the third-party vendor and additional terms and conditions imposed by the vendor may apply. These Terms will continue to apply to your access to and use of the purchased product or service, except where these Terms conflict with terms imposed by the third-party vendor.
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error received from its suppliers, S&S shall have the right, to the fullest extent permitted under applicable law, to refuse or cancel any orders placed for product listed at the incorrect price. S&S shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, S&S will issue a credit to your credit card account in the amount of the charge.
Your receipt of an electronic or other form of order confirmation does not signify S&S's acceptance of your order, nor does it constitute confirmation of S&S's offer to sell. S&S reserves the right at any time after receipt of your order to accept or decline your order for any reason. S&S reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. S&S may require additional verifications or information before accepting any order.
S&S reserves the right to terminate your access to and use of the Sites in its sole discretion, without notice and liability, including, without limitation, if S&S believes your conduct violates these Terms. S&S also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Sites or S&S. Any violation of these Terms may be referred to law enforcement authorities.
LOCATION OF SITES AND TERRITORIAL RESTRICTIONS
S&S controls and operates the Sites from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. The information provided on the Sites are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject S&S to any registration requirement within such jurisdiction or country. Anyone using or accessing the Sites from outside the United States does so on their own initiative and is responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Sites or any portion of the Sites, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Sites may be subject to United States export controls. Thus, no software from the Sites may be downloaded, exported or re-exported: (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
GOVERNING LAW; COMMENCEMENT OF ACTIONS
These Terms and all claims arising from or related to your use of the products or services will be governed by and construed in accordance with the laws of the State of New York, except New York's conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration or small claims court (as set forth in the Dispute Resolution; Arbitration Agreement Section above), you agree to exclusive jurisdiction in the state and federal courts in New York, New York.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the products or services or these Terms within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
The failure of S&S to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit S&S's rights with respect to such breach or any subsequent breaches. No waiver by S&S of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of S&S. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. S&S may assign its rights and duties under these Terms to any party at any time without any notice to you. Terms may not be assigned by you without S&S's prior written consent. If any provision of these Terms are found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against S&S by virtue of S&S having drafted them. No amendment to or modification of these Terms, or action, or delay, will be binding unless in writing and signed by S&S. Provisions of these Terms that would logically survive termination shall survive the termination of these Terms for any reason (including without limitation, Disclaimer of Warranties Waiver, Limitation of Liability; Waiver and Arbitration).
OUR RIGHT TO UPDATE THESE TERMS
S&S reserves the right to modify or add to these Terms at any time without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the homepage or otherwise, and that your use of a Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using a Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of a Site from that point forward.
SOCIAL DISTRIBUTION AND WIDGETS
S&S may allow you – but only through express written permission –to engage in certain personal uses of Site Content that include the ability to share Site Content with others ("Social Distribution"). For example, a Site may allow you to send Site Content to friends, display Site Content on your personal web site or post Site Content on a third party web site. You understand that only S&S can make claims, promises or statements on behalf of S&S about its products and services and agree not to do so. You also agree that you will not imply that you and S&S are affiliated in any way or that S&S approves of your comments. We reserve the right to revoke our permission for Social Distribution at any time and for any reason and you agree to immediately cease Social Distribution upon notice of revocation and to comply with any terms we post in connection the Social Distribution of Site Content.
Similarly, a Site may provide content that you may choose to embed on your personal web page, third party web site or social networking site by pasting the HTML or other code provided by us (typically labeled as an embed code) (“Widgets”). Widgets are Site Content and subject to the limited, revocable license described above. We may discontinue providing the services necessary for the Widgets to operate or we may disable Widgets you have embedded at any time for any reason without any liability to you. You agree that our permission to you to use Widgets on your personal web page does not provide you (or any third party) with any intellectual property rights in or to the Widget or any Site Content made available via any Widget.
NOTICE TO THIRD PARTY SITES: Any Site Content made available in connection with your web page, social networking site, or otherwise, by our Widgets, third party widgets or otherwise is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Site Content upon notice.