NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS.
General Use Restrictions
Certain information, documents, materials and services provided on and through the Site(s), including content, logos, graphics and images (together, the “Materials”) are made available to you by LISTORIO and are the copyrighted and/or trademarked work of LISTORIO or LISTORIO’s contributors. Materials do not include Submissions (as defined below). The terms specific to the Submissions are described below.
LISTORIO grants you a limited, personal, non-exclusive and non-transferable license to use and to display and to make one copy of the Materials and to use the Materials on the Site(s) solely for your personal use. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to the Site(s) or any Materials.
By using the Site(s), you consent to receiving electronic communications from LISTORIO. These electronic communications are part of your relationship with LISTORIO and you receive them as part of your subscription to the Site(s). You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Third Party Content and Products
Certain information and other content may be the material of third-party licensors and suppliers to LISTORIO (including, without limitation, certain third party logos and trade names (“Third Party Content”)). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your personal computer solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. LISTORIO DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Links to Third Party Sites
The Site(s) may be linked to other sites that are not LISTORIO sites. LISTORIO is providing these links to you only as a convenience, and LISTORIO is not responsible for such linked sites (including, without limitation, the content, products, services or links displayed on such sites).
LISTORIO is a trademark of LISTORIO. Other trademarks, names and logos on the Site(s) are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Site(s), including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of LISTORIO, Copyright © 2020 LISTORIO. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
You promise not to use the Site(s) or Materials for any purpose that is unlawful or prohibited by these Terms. You agree to abide by all applicable local, state and national laws and regulations. When using the Site(s) or Materials, including, without limitation, the developer or other blogs and/or support center areas on the Site(s), you agree not to upload any materials, information or data or take any actions that are inappropriate or disruptive to the Site(s). Without limitation, you agree not to:
- Post off topic information or messages that are not related to the content on the Site(s);
- Use racially, ethnically, or otherwise offensive language;
- Incite illegal activity;
- Use explicit/obscene language or solicit/upload sexually explicit images (actual or simulated);
- Upload anything that exploits children or minors or that depicts cruelty to animals;
- Upload any personal information that you do not have authority or permission to upload;
- Upload any copyrighted or trademarked materials without the express permission from the owner;
- Use any robot, spider, scraper or other automated means to access the Site(s); or
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
This list of prohibitions provides examples and is not complete or exclusive. LISTORIO reserves the right to terminate your access to your account, your ability to upload content to the Site(s) with or without cause and with or without notice, for any reason or no reason, or for any action that LISTORIO determines is inappropriate or disruptive to the Site(s) or to any other user of the Site(s). LISTORIO may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at LISTORIO’s discretion, LISTORIO will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site(s) or on the Internet. These prohibitions do not require LISTORIO to monitor, police or remove any information or Submissions submitted by you or any other user.
Copyright and Trademark Infringements
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, such as LISTORIO, being asked to remove content that allegedly violates someone’s copyright. While the DMCA itself only applies to copyrights, LISTORIO also extends its DMCA policy below to allegations of trademark infringement. As an online service provider under the DMCA, LISTORIO respects the intellectual property rights of others, and we ask you to do the same. LISTORIO may, in appropriate circumstances and at our discretion, terminate service and/or access to the Site(s) for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright or trademark infringement and appears on our Site(s), please provide LISTORIO’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted or trademarked work claimed to have been infringed, or, if multiple works at a single online Site are covered by a single notification, a representative list of such works at that Site;
- 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 at the Site, and information reasonably sufficient to permit LISTORIO to locate the material;
- Information reasonably sufficient to permit LISTORIO to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- 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 and/or trademark owner, its agent, or the law; and
- 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.
LISTORIO’s agent for notice of claims of copyright or trademark infringement on the Site(s) can be reached as follows:
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Disclaimer of Warranties
Your use of the Site(s), Materials and/or the services is at your own risk. The Third Party Content has not been verified or authenticated in whole or in part by LISTORIO, and it may include inaccuracies or typographical or other errors. LISTORIO does not warrant the accuracy or timeliness of the Materials or the Third Party Content contained on the Site(s). LISTORIO has no liability for any errors or omissions in the Materials or the Third Party Content, whether provided by LISTORIO or our licensors.
LISTORIO, FOR ITSELF AND ITS LICENSORS AND SUPPLIERS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE(S), MATERIALS, YOUR APPLICATIONS OR LISTORIO’S HOSTING THEREOF, THIRD PARTY CONTENT OR SUBMISSIONS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE(S) AND/OR THE RESULTS OBTAINED FROM THE USE OF THE SITE(S) OR MATERIALS, INCLUDING WITHOUT LIMITATION THE THIRD PARTY CONTENT OR SUBMISSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE(S), THE THIRD PARTY CONTENT, THE HOSTING OF YOUR APPLICATIONS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE(S) IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LISTORIO DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability
IN NO EVENT WILL LISTORIO AND/OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SITE(S), THE USE OR PERFORMANCE OF THE SITE(S), THE DELAY OR INABILITY TO USE THE SITE(S), OR FOR ANY INFORMATION, THIRD PARTY CONTENT, YOUR APPLICATIONS, SUBMISSIONS OBTAINED THROUGH THE SITE(S), OR OTHERWISE ARISING OUT OF THE USE OF THE SITE(S), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF LISTORIO OR ANY OF ITS SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE(S), OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE(S). THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS LISTORIO’S LIABILITY OR YOUR REMEDIES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL LISTORIO’S AND/OR ITS SUPPLIERS OR LICENSORS TOTAL CUMULATIVE LIABILITY TO ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE GREATER OF (A) THE PURCHASE PRICE OF THE PRODUCTS PURCHASED ON THE SITE(S) IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST LISTORIO; OR (B) ONE HUNDRED DOLLARS (USD $100).
Local Laws; Export Control
LISTORIO controls and operates the Site(s) from its headquarters in the United States of America and the Materials, Submissions and/or Third Party Content may not be appropriate or available for use in other locations. If you use the Site(s) outside the United States of America, you are responsible for following applicable local laws.
Dispute Resolution and Binding Arbitration Provision.
Definitions . As used in this Arbitration Provision, the terms “LISTORIO,” “we,” “us,” and “our” refer to LISTORIO., including its subsidiaries and agents; the terms “you” and “your” refer to you as an individual as well as other individuals you allow to access or use the Products, and any legal entity you control, work for, or represent when you access or use the Products. The word “Products” means your access to and/or use of any LISTORIO website, advertisement or promotion and any product, service, or software that you obtain from or through LISTORIO. The word “ Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
Informal Efforts to Resolve Dispute. If a dispute arises between you and LISTORIO, you should first attempt to resolve it by sending an email to firstname.lastname@example.org or by sending the details of your complaint, including your contact information for a response, to the address or fax number listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award to you on an individual basis the same damages and forms of relief as a court could (including injunctive and declaratory relief as well as statutory damages), and must follow the law and terms of this Agreement as a court would. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions and private attorney general actions are not permitted.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY LISTORIO IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH LISTORIO, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF PRODUCTS TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Arbitration Fees . The allocation and payment of all filing, administration and arbitrator fees will be governed by the JAMS’s rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
Arbitration Rules . The arbitration will be conducted by the JAMS (“JAMS”) under its rules if you are a resident of the United States; if your use of the Products has been principally for personal or household use, the JAMS’ procedures for consumer-related disputes including the minimum fairness standards will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the JAMS in San Francisco, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in San Francisco, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen years’ experience in consumer and technology transactions and who is also a member of the JAMS roster of arbitrators. If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the JAMS will pick a neutral arbitrator who meets the qualifications. The JAMS rules are available at http://www.jamsadr.com , or by calling 1- 800 – 352- 5267 from inside the United States or +44 207 583 9808 from outside the United States.
Initiating Arbitration . To begin an arbitration proceeding, you must follow the procedures specified by the applicable JAMS rules as described on their website at http://www.jamsadr.com.
Time Restriction. YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process . Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the JAMS that is the most convenient for you.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable JAMS rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). The confidentiality provisions of this Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended. At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the JAMS rules or the Federal Arbitration Act.
Recovery and Attorneys’ Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and LISTORIO waives any right it may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.
Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
If you violate these Terms, LISTORIO may terminate and/or suspend your right to access the Site(s), in each case without notice.
LISTORIO’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and LISTORIO and supersede all prior or contemporaneous negotiations, discussions or agreements between you and LISTORIO about the Site(s). The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions will survive any termination of these Terms.