14. Representations and Warranties. By uploading, submitting and integrating the Properties in connection with your use of the Services, you represent and warrant that:
a. Proprietary Rights: You have all right, title, license and authority to upload, submit and integrate the Properties, including the right to publish and distribute by electronic and digital means; and
b. Non-Infringing: The Properties do not (i) violate, infringe or misappropriate on the rights associated with any third parties, including, but not limited to, privacy rights, copyright, trademark, trade secrets, patents or other intellectual property rights of any third party, or (ii) violate any statute, law, ordinance or regulation.
15. Customer Questions. Customer questions may be directed by email to email@example.com to address any issues you may have regarding your use of the Platform. Most concerns can be quickly resolved in this matter.
Binding Arbitration. EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with Brandcast arising out of or relating to the Platform, Services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org. When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: firstname.lastname@example.org
Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.
17. The Platform ’s Intellectual Property
a. Copyrights. The Platform ’s logos, design, text, graphics, and other files, and the selection arrangement and organization thereof, are owned by Brandcast. 2017 Brandcast, Inc. ALL RIGHTS RESERVED.
b. Trademarks: The Platform and its logos, page headers, custom graphics, button icons and scripts are trademarks or trade dress of Brandcast.
c. Ownership and Use: Unless otherwise stated herein, nothing in this Agreement or your use of the Platform and Services gives you a right or license to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.
18.DISCLAIMER OF WARRANTIES: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BRANDCAST DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, ITS SERVICES OR USE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, BRANDCAST EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE PLATFORM, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.
19. LIMITATION OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BRANDCAST NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CONTENT, PLATFORM OR SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PLATFORM OR ITS SERVICES, EVEN IF BRANDCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRANDCAST’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE PLATFORM OR SERVICES, EXCEED $1000.00 OR THE FEES PAID TO BRANDCAST IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM, WHICHEVER IS GREATER.
20. INDEMNITY. To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to Subscriber’s (i) use of the Platform, Content and Services (ii) breach of this Agreement, (iii) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, and/or (iv) a breach of Subscriber’s representations and warranties under this Agreement.
21. RELEASE. With regard to any dispute between Subscriber and any other third party relating to your use of the Services, you hereby release Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
22. Force Majeure. Brandcast will not be liable or responsible for any delays in providing the Services, or for failing to provide the Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war or acts of God.
23. No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
24. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
25. Modifications. Our employees, volunteers or agents are not authorized to vary this Agreement. No modification of this Agreement shall be effective unless it is in writing and either signed by an authorized representative of Brandcast or posted on the Platform.
26. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the jurisdiction of the State of California, and venue in the County of San Francisco, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof
27. Assignment. You shall not assign any of the rights or obligations under this Agreement without the prior written consent Brandcast, which consent shall not unreasonably be withheld. Brandcast may at any time assign, transfer or subcontract any or all of its rights or obligations under this Agreement without your consent.
28. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
29. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
30. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
31. Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to: Brandcast at 842 Folsom Street, San Francisco, CA 94107 or by email at email@example.com. All notices will be sent to you by email or will be conspicuously posted on the Platform.
32. Entire Agreement. This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.
33. Complaints - California Residents. If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.