Terms of Use
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Date of Last Revision: Wednesday, May 21, 2008.
The LavaView service and network (collectively, "LavaView" or "the Service")
are operated by LavaView, Inc. and its corporate affiliates (collectively,
"us", "we" or "the Company"). By accessing or using our web site at
www.LavaView.com or the mobile version thereof (together the "Site") or by
posting any LavaView related logos, buttons, API features on your site, you
(the "User") signify that you have read, understand and agree to be bound by
these Terms of Use ("Terms of Use" or "Agreement"), whether or not you are a
registered member of LavaView. We reserve the right, at our sole discretion, to
change, modify, add, or delete portions of these Terms of Use at any time
without further notice. If we do this, we will post the changes to these Terms
of Use on this page and will indicate at the top of this page the date these
terms were last revised. Your continued use of the Service or the Site after any
such changes constitutes your acceptance of the new Terms of Use. If you do not
agree to abide by these or any future Terms of Use, do not use or access (or
continue to use or access) the Service or the Site. It is your responsibility to
regularly check the Site to determine if there have been changes to these Terms
of Use and to review such changes.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION
REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS
LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW
DISPUTES WILL BE RESOLVED.
Eligibility
Membership in the Service is void where prohibited. This Site is intended solely
for users who are thirteen (13) years of age or older. Any registration by, use
of or access to the Site by anyone under 18 must be accompanied by an adult of
21 years of age or older, is unauthorized, unlicensed and in violation of these
Terms of Use. By using the Service or the Site, you represent and warrant that
you are 13 years of age or older, and that you agree to and to abide by all of
the terms and conditions of this Agreement.
Registration Data; Account Security
In consideration of your use of the Site, you agree to (a) provide accurate,
current and complete information about you as may be prompted by any
registration forms on the Site ("Registration Data"); (b) maintain the security
of your password and identification; (c) maintain and promptly update the
Registration Data, and any other information you provide to Company, to keep it
accurate, current and complete; and (d) be fully responsible for all use of your
account and for any actions that take place using your account.
Proprietary Rights in Site Content; Limited License
All content on the Site and available through the Service, including designs,
text, graphics, pictures, video, information, applications, software, music,
sound and other files, and their selection and arrangement (the "Site Content"),
are the proprietary property of the Company, its users or its licensors with all
rights reserved. No Site Content may be modified, copied, distributed, framed,
reproduced, republished, downloaded, displayed, posted, transmitted, or sold in
any form or by any means, in whole or in part, without the Company’s prior
written permission, except that the foregoing does not apply to your own User
Content (as defined below) that you legally post on the Site. Provided that you
are eligible for use of the Site, you are granted a limited license to access
and use the Site and the Site Content and to download or print a copy of any
portion of the Site Content to which you have properly gained access solely for
your personal, non-commercial use, provided that you keep all copyright or other
proprietary notices intact. Except for your own User Content, you may not upload
or republish Site Content on any Internet, Intranet or Extranet site or
incorporate the information in any other database or compilation, and any other
use of the Site Content is strictly prohibited. Such license is subject to these
Terms of Use and does not include use of any data mining, robots or similar data
gathering or extraction methods. Any use of the Site or the Site Content other
than as specifically authorized herein, without the prior written permission of
Company, is strictly prohibited and will terminate the license granted herein.
Such unauthorized use may also violate applicable laws including copyright and
trademark laws and applicable communications regulations and statutes. Unless
explicitly stated herein, nothing in these Terms of Use shall be construed as
conferring any license to intellectual property rights, whether by estoppels,
implication or otherwise. This license is revocable at any time without notice
and with or without cause.
Trademarks
LavaView, SPLOG (Sports Log ) and other Company graphics, logos, designs, page
headers, button icons, scripts and service names are registered trademarks,
trademarks or trade dress of Company in the U.S. and/or other countries.
Company’s trademarks and trade dress may not be used, including as part of
trademarks and/or as part of domain names, in connection with any product or
service in any manner that is likely to cause confusion and may not be copied,
imitated, or used, in whole or in part, without the prior written permission of
the Company.
User Conduct
You understand that except for advertising programs offered by us on the Site
(e.g., LavaView Flyers, LavaView Marketplace), the Service and the Site are
available for your personal, non-commercial use only. You represent, warrant and
agree that no materials of any kind submitted through your account or otherwise
posted, transmitted, or shared by you on or through the Service will violate or
infringe upon the rights of any third party, including copyright, trademark,
privacy, publicity or other personal or proprietary rights; or contain libelous,
defamatory or otherwise unlawful material.
In addition, you agree not to use the Service or the Site to:
harvest or collect email addresses or other contact information of other users
from the Service or the Site by electronic or other means for the purposes of
sending unsolicited emails or other unsolicited communications;
use the Service or the Site in any unlawful manner or in any other manner that
could damage, disable, overburden or impair the Site;
use automated scripts to collect information from or otherwise interact with the
Service or the Site;
upload, post, transmit, share, store or otherwise make available any content
that we deem to be harmful, threatening, unlawful, defamatory, infringing,
abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of
privacy or publicity rights, hateful, or racially, ethnically or otherwise
objectionable;
upload, post, transmit, share, store or otherwise make available any videos
other than those of a personal nature that: (i) are of you or your friends, (ii)
are taken by you or your friends, or (iii) are original art or animation created
by you or your friends;
register for more than one User account, register for a User account on behalf
of an individual other than yourself, or register for a User account on behalf
of any group or entity;
impersonate any person or entity, or falsely state or otherwise misrepresent
yourself, your age or your affiliation with any person or entity;
upload, post, transmit, share or otherwise make available any unsolicited or
unauthorized advertising, solicitations, promotional materials, "junk mail,"
"spam," "chain letters," "pyramid schemes," or any other form of solicitation;
upload, post, transmit, share, store or otherwise make publicly available on the
Site any private information of any third party, including, addresses, phone
numbers, email addresses, Social Security numbers and credit card numbers;
solicit personal information from anyone under 18 or solicit passwords or
personally identifying information for commercial or unlawful purposes;
upload, post, transmit, share or otherwise make available any material that
contains software viruses or any other computer code, files or programs designed
to interrupt, destroy or limit the functionality of any computer software or
hardware or telecommunications equipment;
intimidate or harass another;
upload, post, transmit, share, store or otherwise make available content that
would constitute, encourage or provide instructions for a criminal offense,
violate the rights of any party, or that would otherwise create liability or
violate any local, state, national or international law;
use or attempt to use another’s account, service or system without authorization
from the Company, or create a false identity on the Service or the Site.
upload, post, transmit, share, store or otherwise make available content that,
in the sole judgment of Company, is objectionable or which restricts or inhibits
any other person from using or enjoying the Site, or which may expose Company or
its users to any harm or liability of any type.
User Content Posted on the Site
You are solely responsible for the photos, profiles (including your name, image,
and likeness), messages, notes, text, information, music, video, advertisements,
listings, and other content that you upload, publish or display (hereinafter,
"post") on or through the Service or the Site, or transmit to or share with
other users (collectively the "User Content"). You may not post, transmit, or
share User Content on the Site or Service that you did not create or that you do
not have permission to post. You understand and agree that the Company may, but
is not obligated to, review the Site and may delete or remove (without notice)
any Site Content or User Content in its sole discretion, for any reason or no
reason, including User Content that in the sole judgment of the Company violates
this Agreement or the LavaView Code of Conduct, or which might be offensive,
illegal, or that might violate the rights, harm, or threaten the safety of users
or others. You are solely responsible at your sole cost and expense for creating
backup copies and replacing any User Content you post or store on the Site or
provide to the Company.
When you post User Content to the Site, you authorize and direct us to make such
copies thereof as we deem necessary in order to facilitate the posting and
storage of the User Content on the Site. By posting User Content to any part of
the Site, you automatically grant, and you represent and warrant that you have
the right to grant, to the Company an irrevocable, perpetual, non-exclusive,
transferable, fully paid, worldwide license (with the right to sublicense) to
use, copy, publicly perform, publicly display, reformat, translate, excerpt (in
whole or in part) and distribute such User Content for any purpose, commercial,
advertising, or otherwise, on or in connection with the Site or the promotion
thereof, to prepare derivative works of, or incorporate into other works, such
User Content, and to grant and authorize sublicenses of the foregoing. You may
remove your User Content from the Site at any time. If you choose to remove your
User Content, the license granted above will automatically expire, however you
acknowledge that the Company may retain archived copies of your User Content.
LavaView does not assert any ownership over your User Content; rather, as
between us and you, subject to the rights granted to us in these Terms, you
retain full ownership of all of your User Content and any intellectual property
rights or other proprietary rights associated with your User Content.
LavaView Mobile Services
The Service includes certain services that are available via your mobile phone,
including (i) the ability to upload content to LavaView via your mobile phone
(Mobile Uploads), (ii) the ability to receive and reply to LavaView messages
using text messaging (Mobile Texts), (iii) the ability to browse LavaView from
your mobile phone (Mobile Web), and (iv) the ability to access certain LavaView
features through a mobile application you have downloaded and installed on your
mobile phone (Mobile Client) (collectively the "Mobile Services"). We do not
charge for these Mobile Services. However, your carrier’s normal messaging, data
and other rates and fees will still apply. You should check with your carrier to
find out what plans are available and how much they cost. In addition,
downloading, installing, or using certain Mobile Services may be prohibited or
restricted by your carrier, and not all Mobile Services may work with all
carriers or devices. Therefore, you should check with your carrier to find out
if the Mobile Services are available for your mobile devices, and what
restrictions, if any, may be applicable to your use of such Mobile Services. By
using the Mobile Services, you agree that we may communicate with you regarding
LavaView and other entities by SMS, MMS, text message or other electronic means
to your mobile device and that certain information about your usage of the
Mobile Services may be communicated to us. In the event you change or deactivate
your mobile telephone number, you agree to promptly update your LavaView
account information to ensure that your messages are not sent to the person that
acquires your old number.
Copyright Complaints
We respect the intellectual property rights of others and we prohibit users from
uploading, posting or otherwise transmitting on the LavaView website or service
any materials that violate another party’s intellectual property rights. When we
receive proper Notification of Alleged Copyright Infringement as described in
our LavaView Copyright Policy, we promptly remove or disable access to the
allegedly infringing material and terminate the accounts of repeated infringers
as described herein in accordance with the Digital Millennium Copyright Act. If
you believe that any material on the Site infringes upon any copyright which you
own or control, you may send a written notification of such infringement to our
Designated Agent. Please contact us.
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (DMCA) and other
applicable law, Company has adopted a policy of terminating, in appropriate
circumstances and at Company’s sole discretion, members who are deemed to be
repeat infringers. Company may also at its sole discretion limit access to the
Site and/or terminate the memberships of any users who infringe any intellectual
property rights of others, whether or not there is any repeat infringement.
Third Party Websites and Content
The Site contains (or you may be sent through the Site or the Service) links to
other web sites ("Third Party Sites") as well as articles, photographs, text,
graphics, pictures, designs, music, sound, video, information, applications,
software and other content or items belonging to or originating from third
parties (the "Third Party Applications, Software or Content"). Such Third Party
Sites and Third Party Applications, Software or Content are not investigated,
monitored or checked for accuracy, appropriateness, or completeness by us, and
we are not responsible for any Third Party Sites accessed through the Site or
any Third Party Applications, Software or Content posted on, available through
or installed from the Site, including the content, accuracy, offensiveness,
opinions, reliability, privacy practices or other policies of or contained in
the Third Party Sites or the Third Party Applications, Software or Content.
Inclusion of, linking to or permitting the use or installation of any Third
Party Site or any Third Party Applications, Software or Content does not imply
approval or endorsement thereof by us. If you decide to leave the Site and
access the Third Party Sites or to use or install any Third Party Applications,
Software or Content, you do so at your own risk and you should be aware that our
terms and policies no longer govern. You should review the applicable terms and
policies, including privacy and data gathering practices, of any site to which
you navigate from the Site or relating to any applications you use or install
from the site.
Share Service
Company offers a feature whereby users of the Site can share with others or post
to their own member profile, videos, articles and other Third Party
Applications, Software or Content from, and/or links to, Third Party Sites
through the Service (the "Share Service"). You acknowledge and agree that your
use of the Share Services and all links, User Content or Third Party
Applications, Software or Content shared through the Share Service is subject
to, and will fully comply with the user conduct rules set forth above and the
other terms and conditions set forth in these Terms of Use.
LavaView Platform Applications
The LavaView Platform is a set of APIs and services provided by LavaView that
enable third-party developers ("Platform Developers") to create websites and
applications that retrieve data made available by LavaView and its users and/or
that retrieve authorized data from third-party sites for use on the LavaView
Site ("Platform Applications")
Platform Developers may use the LavaView Platform and create Platform
Applications only in accordance with the terms and conditions set forth in an
agreement entered into between LavaView and the Platform Developer ("Developer
Terms"). Our standard Developer Terms consist of the LavaView Developer Terms
of Service and the related LavaView Platform Application Guidelines. We may
from time to time enter into separate agreements with certain third party
Platform Developers that contain different or additional terms, provided
however, that each such separate agreement will require the third party Platform
Developer to only display your information in accordance with your LavaView
privacy settings. The standard Developer Terms are subject to change without
prior notice at any time, in the Company’s sole discretion, so you should review
these documents from time to time. ALL USE OF THE LavaView PLATFORM IS PROVIDED
"AS IS" AND AT YOUR OWN RISK.
Users who install Platform Applications must agree to the terms and conditions
set forth in the Platform Application Terms of Use ("Application User Terms")
and in these Terms of Use. The Application User Terms are subject to change
without prior notice at any time, in the Company’s sole discretion, so you
should review these terms each time you install an application and from time to
time. Platform Developers may require you to agree to their own terms of
service, privacy policies and/or other policies as a condition of using Platform
Applications. Platform Applications have not been approved, endorsed, or
reviewed in any manner by LavaView, and we are not responsible for your use of
or inability to use any Platform Applications, including the content, accuracy,
or reliability of such Application and the privacy practices or other policies
of Developers. YOU USE SUCH PLATFORM APPLICATIONS AT YOUR OWN RISK.
If you, your friends or members of your network use any Platform Applications,
such Platform Applications may access and share certain information about you
with others in accordance with your privacy settings as further described in our
Privacy Policy. Platform Developers are required to agree to restrictions on
access, storage and use of such information. However, while we have undertaken
contractual and technical steps to restrict possible misuse of such information
by such Platform Developers, we do not screen or approve Developers, and we
cannot and do not guarantee that all Platform Developers will abide by such
restrictions and agreements. Certain actions you take through the Platform
Applications may be displayed to your friends in your profile, mini-feed and
news feed, and you may opt-out of displaying your Platform Application actions
on the Privacy Settings page. Please report any suspected misuse of information
through the LavaView Platform as described in our Privacy Policy.
You may set your preferences for your news feed and mini-feed here.
LavaView Pages
LavaView Pages are special profiles used solely for commercial, political, or
charitable purposes. You may not set up a LavaView Page on behalf of another
individual or entity unless you are authorized to do so. This includes fan
LavaView Pages, as well as LavaView Pages to support or criticize another
individual or entity.
LavaView DOES NOT PRE-SCREEN OR APPROVE LavaView PAGES, AND CANNOT GUARANTEE
THAT A LavaView PAGE WAS ACTUALLY CREATED AND IS BEING OPERATED BY THE
INDIVIDUAL OR ENTITY THAT IS THE SUBJECT OF A LavaView PAGE. NOR IS LavaView
RESPONSIBLE FOR THE CONTENT OF ANY LavaView PAGE, OR ANY TRANSACTIONS ENTERED
INTO OR OTHER ACTIONS TAKEN ON OR IN CONNECTION WITH ANY LavaView PAGE,
INCLUDING HOW THE OWNER OF THE LavaView PAGE COLLECTS, HANDLES, USES AND / OR
SHARES ANY PERSONAL INFORMATION IT MAY COLLECT FROM USERS (PLEASE REVIEW THE
LavaView PRIVACY POLICY IF YOU HAVE ANY QUESTIONS OR CONCERNS REGARDING THE USE
OR SHARING OF YOUR PERSONAL INFORMATION). YOU SHOULD BE CAREFUL BEFORE PROVIDING
ANY PERSONAL INFORMATION TO OR ENTERING INTO ANY TRANSACTION IN CONNECTION WITH
A LavaView PAGE.
In addition to these Terms of Use, LavaView Pages are subject to and governed
by certain Additional Terms Applicable to LavaView Pages. The Additional Terms
Applicable to LavaView Pages control in the event of any conflict between them
and the Terms of Use.
Terms of Sale
Please refer to our Terms of Sale for the terms, conditions and policies
applicable to your purchase of products or services from Company. By ordering
products or services from Company through the Site, you agree to be bound by and
accept the Terms of Sale. The Terms of Sale are subject to change without prior
notice at any time, in Company’s sole discretion so you should review the Terms
of Sale each time you make a purchase.
User Disputes
You are solely responsible for your interactions with other LavaView users. We
reserve the right, but have no obligation, to monitor disputes between you and
other users.
Privacy
We care about the privacy of our users. By using the Site or the Service, you
are consenting to have your personal data transferred to and processed in the
United States.
Disclaimers
The Company is not responsible or liable in any manner for any User Content or
Third Party Applications, Software or Content posted on the Site or in
connection with the Service, whether posted or caused by users of the Site, by
LavaView, by third parties or by any of the equipment or programming associated
with or utilized in the Site or the Service. Although we provide rules for user
conduct and postings, we do not control and are not responsible for what users
post, transmit or share on the Site and are not responsible for any offensive,
inappropriate, obscene, unlawful or otherwise objectionable content you may
encounter on the Site or in connection with any User Content or Third Party
Applications, Software or Content. The Company is not responsible for the
conduct, whether online or offline, of any user of the Site or Service.
The Site and the Service may be temporarily unavailable from time to time for
maintenance or other reasons. Company assumes no responsibility for any error,
omission, interruption, deletion, defect, delay in operation or transmission,
communications line failure, theft or destruction or unauthorized access to, or
alteration of, User communications. The Company is not responsible for any
technical malfunction or other problems of any telephone network or service,
computer systems, servers or providers, computer or mobile phone equipment,
software, failure of email or players on account of technical problems or
traffic congestion on the Internet or at any Site or combination thereof,
including injury or damage to User’s or to any other person’s computer, mobile
phone, or other hardware or software, related to or resulting from using or
downloading materials in connection with the Web and/or in connection with the
Service, including any Mobile Client software. Under no circumstances will the
Company be responsible for any loss or damage, including any loss or damage to
any User Content or personal injury or death, resulting from anyone’s use of the
Site or the Service, any User Content or Third Party Applications, Software or
Content posted on or through the Site or the Service or transmitted to Users, or
any interactions between users of the Site, whether online or offline.
THE SITE, THE SERVICE (INCLUDING THE MOBILE SERVICES, THE SHARE SERVICE AND THE
MARKETPLACE SERVICE), ANY PLATFORM APPLICATIONS AND THE SITE CONTENT ARE
PROVIDED "AS-IS" AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE
COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF
THE SITE AND/OR THE SERVICE AND/OR ANY PLATFORM APPLICATIONS. COMPANY DOES NOT
REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE, THE
SERVICE OR ANY PLATFORM APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT
OR ERROR-FREE OR THAT THE SITE OR SERVICE ITS SERVERS, OR ANY PLATFORM
APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU
SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT
OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT
VIRUSES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU
DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY
MOBILE CLIENT) FROM OR THROUGH THE SERVICE AND ANY PLATFORM APPLICATIONS AT YOUR
OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE
THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA
OR OTHER HARM OF ANY KIND THAT MAY RESULT.
The Company reserves the right to change any and all content, software and other
items used or contained in the Site and any Services and Platform Applications
offered through the Site at any time without notice. Reference to any products,
services, processes or other information, by trade name, trademark,
manufacturer, supplier or otherwise does not constitute or imply endorsement,
sponsorship or recommendation thereof, or any affiliation therewith, by Company.
Limitation on Liability
IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU
OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,
SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING
FROM YOUR USE OF THE SITE OR THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF
THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE
SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM
OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU
TO COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL
THE COMPANY’S LIABILITY TO YOU EXCEED $1000. YOU ACKNOWLEDGE THAT IF NO FEES ARE
PAID TO COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY,
UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY
KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION.
Termination
The Company may terminate your membership, delete your profile and any content
or information that you have posted on the Site or through any Platform
Application and/or prohibit you from using or accessing the Service or the Site
or any Platform Application (or any portion, aspect or feature of the Service or
the Site or any Platform Application) for any reason, or no reason, at any time
in its sole discretion, with or without notice, including if it believes that
you are under 13, or under 18 and not in high school or college. When we are
notified that a user has died, we will generally, but are not obligated to, keep
the user’s account active under a special memorialized status for a period of
time determined by us to allow other users to post and view comments.
Governing Law; Venue and Jurisdiction
By visiting or using the Site and/or the Service, you agree that the laws of the
State of Delaware, without regard to principles of conflict of laws, will govern
these Terms of Use and any dispute of any sort that might arise between you and
the Company or any of our affiliates. With respect to any disputes or claims not
subject to arbitration (as set forth below), you agree not to commence or
prosecute any action in connection therewith other than in the state and federal
courts of Georgia, and you hereby consent to, and waive all defenses of lack of
personal jurisdiction and forum non conveniens with respect to, venue and
jurisdiction in the state and federal courts of Georgia.
Arbitration
YOU AND COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO
SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE
SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND
CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE SITE
AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE
SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent
that either of us has in any manner infringed upon or violated or threatened to
infringe upon or violate the other party’s patent, copyright, trademark or trade
secret rights, or you have otherwise violated any of the user conduct rules set
forth above or in the Code of Conduct then the parties acknowledge that
arbitration is not an adequate remedy at law and that injunctive or other
appropriate relief may be sought; and (b) no disputes or claims relating to any
transactions you enter into with a third party through the LavaView Marketplace
may be arbitrated.
Arbitration under this Agreement shall be conducted by the American Arbitration
Association (the "AAA") under its Commercial Arbitration Rules and, in the case
of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related
Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The
location of the arbitration and the allocation of costs and fees for such
arbitration shall be determined in accordance with such AAA Rules and shall be
subject to the limitations provided for in the AAA Consumer Rules (for consumer
disputes). If such costs are determined to be excessive in a consumer dispute,
the Company will be responsible for paying all arbitration fees and arbitrator
compensation in excess of what is deemed reasonable. The arbitrator’s award
shall be binding and may be entered as a judgment in any court of competent
jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER
THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING
ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE
SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event
shall any claim, action or proceeding by you related in any way to the Site
and/or the Service (including your visit to or use of the Site and/or the
Service) be instituted more than three (3) years after the cause of action
arose.
Indemnity
You agree to indemnify and hold the Company, its subsidiaries and affiliates,
and each of their directors, officers, agents, contractors, partners and
employees, harmless from and against any loss, liability, claim, demand,
damages, costs and expenses, including reasonable attorney’s fees, arising out
of or in connection with any User Content, any Third Party Applications,
Software or Content you post or share on or through the Site (including through
the Share Service), your use of the Service or the Site, your conduct in
connection with the Service or the Site or with other users of the Service or
the Site, or any violation of this Agreement or of any law or the rights of any
third party.
Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas,
feedback or other information about the Site or the Service ("Submissions"),
provided by you to Company are non-confidential and shall become the sole
property of Company. Company shall own exclusive rights, including all
intellectual property rights, and shall be entitled to the unrestricted use and
dissemination of these Submissions for any purpose, commercial or otherwise,
without acknowledgment or compensation to you.
Definitions and Constructions
Unless otherwise specified, the terms "includes", "including", "e.g.,", "for
example", and other similar terms are deemed to include the term "without
limitation" immediately thereafter. Terms used in these Terms with the initial
letter(s) capitalized will have the meaning attributed to them in these Terms.
Other
These Terms of Use constitute the entire agreement between you and Company
regarding the use of the Site and/or the Service, superseding any prior
agreements between you and Company relating to your use of the Site or the
Service. The failure of Company to exercise or enforce any right or provision of
these Terms of Use shall not constitute a waiver of such right or provision in
that or any other instance. If any provision of this Agreement is held invalid,
the remainder of this Agreement shall continue in full force and effect. If any
provision of these Terms of Use shall be deemed unlawful, void or for any reason
unenforceable, then that provision shall be deemed severable from these Terms of
Use and shall not affect the validity and enforceability of any remaining
provisions.
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