THESE TERMS CONTAIN A MANDATORY ARBITRATION CLAUSE AND A WAIVER OF CLASS ACTION CLAUSE. PLEASE REFER TO AND READ SECTION 19 OF THESE TERMS.
These Terms govern your use of the websites, applications and software operated by Elena Sunshine Corporation. (“Company”, “we”, “us” or “our”), publisher of the Elena Sunshine Magazine, to which these Terms are linked or referenced to, including all content, features and functionality, and related services such as emails, newsletters, sweepstakes and promotions (collectively, the “Services”). These Terms apply whether you are accessing the Services via a personal computer, wireless or mobile device, or any other technology or device (each, a “Device”). These Terms do not cover other services, websites or any corresponding content, features, and activities made available by any other company or third party, unless specifically stated. If you do not agree to these Terms, you may not access or use any portion of the Services.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Services; charge fees in connection with the Services; modify and/or waive any fees charged in connection with the Services; and/or make available opportunities to some or all users of the Services. You agree that neither we nor any of our affiliates shall be liable to you or to any other person for any modification, suspension or discontinuance of the Services or any component thereof.
If you are having any trouble accessing these Terms or the Services, please send an email to [email protected] .
- Term. These Terms shall remain in full force and effect while you use the Services. You may terminate your use of or registration for the Services at any time, for any reason, and Company may terminate your use of or registration to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party. These Terms shall continue to apply to your previous access and/or use of the Services after any such termination.
- Modifications. We may modify these Terms from time to time and at any time in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately. Your use of the Services after these changes are made is subject to the Terms as modified thereby, and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review these Terms regularly so you are aware of the most current rights and obligations that apply to you. The Last Updated legend at the top of this page indicates when these Terms was last revised.
- Eligibility; Compliance. Use of the Services is limited to users 16 years of age and older. By using the Services, you represent and warrant that (a) you are 16 years of age or older and (b) your use of the Services does not violate any applicable law, rule or regulation. Certain features of the Services may be subject to heightened age and/or other eligibility requirements. If you provide information that is untrue, inaccurate, not current or incomplete, or Company suspects that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in our sole discretion, with or without notice to you, and without liability or obligation to you. Company is based in the United States and the Services are provided from the United States. Company makes no representation or warranty that the Services or the Content (as defined herein) are appropriate or available for use in other locations. If you use the Services from a jurisdiction other than the United States, you agree to do so at your own risk, and you are responsible for complying with any and all local laws applicable to your use of the Services.
- User Registration. In order to access and use certain content, features, or functionality of the Services, we may require that you register for the applicable Services and have a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, without limitation, your email address, legal name, country of residence, zip code, etc., and, for fee-based transactions and purchases offered by us, your physical address, telephone number(s), and applicable payment data and information (collectively, a “User Account”). You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. Further, if you elect to become a registered user of the Services, you are responsible for maintaining the confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify Company of any unauthorized use of your User Credentials or User Account, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Credentials and User Account, (b) update, maintain and control access to your User Credentials and User Account, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any user of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. Company shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4.
7. Proprietary Rights.
7.1 As between you and Company, Company owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available through the Services (“Content”), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term “Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.
7.2 The Services are to be used solely for your non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You may not exceed the limited rights and access provided to you under these Terms. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by Company and set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, frame, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third-party website or platform), or otherwise use, any Content without the express, prior written consent of Company or its owner if Company is not the owner. Requests for permission to reproduce or use any of the Content can be made by contacting Company in writing at:
Elena Sunshine Corporation
Attn: Permissions Department
90 State Street, STE 700 Office 40
Albany, NY 12207
Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Section 10 below. You further agree to abide by exclusionary protocols (e.g., Robots.txt) that may be used in connection with the Services. You may not access parts of the Services to which you are not authorized, or attempt to circumvent any restrictions imposed on your use of or access to the Services.
8. User Conduct.
8.1 You are solely responsible for your conduct in connection with the Services. We want to keep the Services enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. While using the Services, you will not:
- (a) engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- (b) submit, post, email, display, transmit or otherwise make available through the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- (c) submit, post, email, display, transmit or otherwise make available through the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- (d) engage in or encourage conduct that affects adversely or reflect negatively on Company, its affiliates, or parent company, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising or becoming a supplier to us in connection with the Services;
- (e) submit, post, email, display, transmit or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- (f) use the Services for commercial or business purposes, including, without limitation, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking with another website or service;
- (g) modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
- (h) impersonate any person or entity or falsely state or otherwise represent your affiliation with a person, or entity;
- (i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services;
- (j) solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information; or
- (k) modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so.
Company assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time Company chooses in its sole discretion to monitor the Services, Company nonetheless assumes no responsibility for User Postings (as defined herein), assumes no obligation to modify or remove any User Postings, and assumes no responsibility for the conduct of any user. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates, or is suspected of violating, this Section 8, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Company may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the law or legal process; (b) enforce these Terms; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Company, users or any third parties including acting in urgent circumstances.
8.2 We do not accept any unsolicited ideas via the Services or otherwise from outside the company including without limitation suggestions about advertising or promotions, or merchandising of any products, additions to our services, or changes in methods of doing business. We may already be working on or may in the future work on a similar idea. This policy eliminates concerns about ownership of such ideas. If, notwithstanding this policy, you submit an unsolicited idea via the Services or otherwise, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that we shall exclusively own all known or hereafter existing rights to the idea everywhere in the world, and that such idea is hereby irrevocably assigned to us. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and or to the extent necessary for Company to utilize your submission, you hereby grant Company an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation to you.
9. User Postings.
9.1 The Services may provide you and other users with an opportunity to participate in blogs, forums and other message, comment and communication features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages and other content and information via the Services (each, a “User Posting”, and collectively, “User Postings”). You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available, including without limitation as set forth in Section 8. User Postings do not reflect the views of Company, its affiliates or parent company, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, Company does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall Company be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
9.2 The Services, including, without limitation, all User Posting features and functionality, is for personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that Company shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating these Terms, including, without limitation, Section 8 herein, or is deemed to be unacceptable to Company, as determined in Company’s sole discretion.
9.3 In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to Company the unrestricted, worldwide, non-exclusive, irrevocable, perpetual, fully paid-up and royalty-free right and license, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to Company, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in these Terms and granted to Company shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered user or not.
9.4 Company does not acquire any title or ownership rights in the User Postings that you submit and/or make available, and Company’s sole right to utilize the User Postings is set forth in Section 9.3, above. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in these Terms and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate these Terms, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into these Terms and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under these Terms and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.
- Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- 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 work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
- 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, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or 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.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Elena Sunshine Coropration
Attn. Legal Department
90 State Street, STE 700 Office 40
Albany, NY 12207
Email Address: [email protected]
Facsimile Number of Designated Agent: 862-236-5585
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to Company customer service by sending an email to [email protected]. The Company has a policy of terminating repeat infringers’ access to its Services in appropriate circumstances.
- Certain Services Terms and Requirements.
11.1 Availability. You acknowledge that Company licenses some or all of the Content under agreement from third parties, and that Company may add, delete or disable Content, and/or add, delete, disable or modify some or all of the Services, at its sole election, and you acknowledge: (a) that you may no longer be able to use the Services to the same extent, or at all, as prior to such change or discontinuation, and (b) that Company shall have no obligation or liability to you in such case. In no event shall Company be liable for the removal of, or disabling of access to, any Content, the Services, materials or any features or portions of the Services. Company may also impose limits on the use of or access to certain features or portions of the Content or the Services, in any case and without notice or liability to you.
11.2 Device Requirements and Terms. In order to access and use the Services and the Content, you may be required to use Device(s) and other technology meeting certain system, configuration and other requirements established by Company, its content partners, licensors and other third parties (e.g., storefront, network, website, platform and other operators, etc.) (collectively, “Operators”), and you are responsible for ensuring that your Device(s) and other technology meet all such requirements at all times and prior to any purchase or order on or in connection with the Services. Company is not responsible for any failure of the Services or your inability to access the Services as a result of your use of Device(s) that do not meet Company’s or its Operators’ system requirements. In addition, you are responsible for any data access, messaging and other service rates and charges you may incur in connection with your Device and/or use of the Services.
11.3 Usage Rules. Certain Content and Services (in whole or in part) may be accompanied by technology and/or other restrictions (e.g., digital rights management technology) that protect digital information and content from unauthorized use and access and may limit and restrict your usage of such Content and Services in accordance with certain rules and restrictions established by Company and/or Operators (“Usage Rules”). You agree to comply with such Usage Rules at all times, and shall not violate or attempt to violate any security components thereof. You further acknowledge and agree that the Usage Rules may be controlled and monitored by Company and/or its designees for compliance purposes, and Company reserves the right to enforce the Usage Rules with or without notice to you.
11.4 Software License Grant and Restrictions on Use. Any software available in connection with the Services is subject to United States export control laws. No such software may be downloaded or otherwise exported or re-exported in violation of United States export laws. Furthermore, any software is licensed, not sold, to users. Subject to these Terms, Company agrees to permit you, on a non-exclusive, revocable, non-transferable, non-sublicensable, limited basis, to install and/or use the software on a single Device that you own or control, provided that your installation and/or use of the software is solely (a) for your own personal use; and (b) in accordance with the restrictions and limitations set forth in these Terms. Without limiting the generality of the foregoing, you shall not: (a) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer the software or any portion thereof; (b) make copies of the software or any portion thereof; (c) reverse engineer, decompile or disassemble any portion of the software; (d) create derivative works of or from the software or any portion thereof; (e) incorporate the software or any portion thereof, into any product or service; (f) use the software or any portion thereof for commercial purposes; and (g) remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in the software. All rights not expressly granted to you hereunder are reserved to us and our licensors.
11.5 Objectionable Material. You understand that by using the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable by some, which Content may or may not be identified as such. Nevertheless, you agree to use the Services at your sole risk and that Company shall have no liability to you for Content that may be found to be offensive, indecent, or objectionable.
- Customer Support. For assistance with technical issues or customer support inquiries, please send an email to [email protected].
- Advertisements. Access to the Content available on the Services is made available to you in part due to the paid advertising that appears on the Services. You agree that that you will not, and will not permit any third party to, remove, obstruct, modify or otherwise interfere with the delivery or display of advertisements on the Services. We reserve the right to suspend your access to and/or re-insert advertisements in the event we detect any such interference with the delivery or display of advertisements on the Services. Moreover, from time to time, you may choose to communicate with, interact with, or obtain Third-Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
- Promotions, Contests, and Sweepstakes. From time to time, Company, or the Services’ operational service providers, suppliers, Operators, and Advertisers may conduct promotions and other activities on, through or in connection with the Services, including, without limitation, contests and sweepstakes (collectively, “Promotions”). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you in connection therewith, and your participation in such Promotions shall be subject to such Additional Terms and/or Rules.
- Assignment. These Terms, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Company without restriction, notice or other obligation to you.
- Indemnity. You agree to indemnify, defend and hold Company, its affiliates, and parent company, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation these Terms, (c) your User Postings, or (d) any violation by you of applicable law. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
- DISCLAIMER AND LIMITATIONS OF LIABILITY. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THIS SITE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR ANY CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE ON, THROUGH OR IN CONNECTION THEREWITH WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
Without limiting the foregoing, we are not responsible or liable for any viruses, malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, User Postings and Content associated with your use of the Services.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS (THE “RELEASED PARTIES”, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THESE TERMS, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. IN NO EVENT SHALL THE RELEASED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE EXCEED THE LESSER OF THE TOTAL DOLLAR AMOUNT, IF ANY, PAID BY YOU TO COMPANY FOR USE OF THE SERVICES AND $100. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in these Terms may not apply to you.
- DISPUTE RESOLUTION, AGREEMENT TO ARBITRATE, AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. THIS SECTION AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO BRING A LAWSUIT IN COURT.
- BINDING ARBITRATION. Any and all controversies or claims arising out of or relating to these Terms or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved by binding, individual arbitration, with the limited exception of the following: (i) any statutory or common law claim involving intellectual property; and (ii) any claim brought in small claims court where the amount in controversy is properly within the jurisdiction of such small claims court (collectively, the “Excluded Claims”). YOUR AGREEMENT TO ARBITRATION MEANS, EXCEPT FOR THE EXCLUDED CLAIMS, YOU ARE GIVING UP YOUR RIGHT TO FILE A LAWSUIT IN COURT AND THE RIGHT TO A TRIAL BY JURY. INSTEAD, YOU WILL HAVE A HEARING BEFORE A NEUTRAL ARBITRATOR.
- WAIVER OF CLASS ARBITRATIONS AND CLASS ACTIONS. YOU AND COMPANY AGREE THAT YOU EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A NAMED PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, CLASS ARBITRATION OR ANY FORM OF REPRESENTATIVE PROCEEDING. YOU AGREE THAT FOR ALL DISPUTES BETWEEN US THERE WILL BE NO CLASS ARBITRATIONS OR CLASS ACTIONS IN ANY FORUM. This means that by entering into these Terms, any arbitration under these Terms will take place on an individual basis only and the arbitrator shall not allow any class arbitrations or class proceedings, and shall not aggregate claims of multiple parties. This also means that by entering into these Terms, independent of the agreement to arbitrate and waiver of class arbitration, you are giving up the ability to participate in or bring a class action in court for any and all claims, including but not limited to the Excluded Claims.
- All arbitrations under this agreement to arbitrate will be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “Arbitration Rules”). Contact information for the AAA, as well as copies of the Arbitration Rules and applicable forms, are available at http://www.adr.org.
- All issues are for the arbitrator to decide, except that issues relating to the scope, application and enforceability of the arbitration and class action waiver provisions are for the court to decide. As noted in Section 15(G) below, New York state law applies to any arbitration under this Agreement, but the parties acknowledge that the Federal Arbitration Act governs the interpretation and enforcement of the arbitration agreement.
- In circumstances in which the Arbitration 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 the County of New York in the State of New York, unless you and we both agree otherwise in writing. Payment of all filing, administration, and arbitrator fees will be governed by the Arbitration Rules, except as follows: if the total claims you seek is less than $10,000, we will reimburse you for filing fees you pay to the AAA to initiate arbitration.
- Judgment on the award rendered by the arbitrator may be entered in any federal or state court of competent jurisdiction located in the County of New York in the State of New York.
- New York state law applies to all claims and disputes between us, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for Excluded Claims litigation, and for any other controversy or claim for which arbitration is denied for any reason, will be an appropriate federal or state court with proper jurisdiction located in the County of New York in the State of New York.
- RIGHT TO OPT OUT OF ARBITRATION. You may opt-out of the mandatory arbitration provision in Section 15(A) by sending a written notification to us including your name, address and a clear statement that you do not wish to resolve claims with us through arbitration, along with your signature and the date. Your decision to opt-out will have no adverse effect on your relationship with us or your use of the Services. You must send your written notification to us at the following address via certified mail postmarked within 30 days of the date you visit this website: Elena Sunshine Corporation; Attn: Legal Dept./New York Post Arbitration Opt-Out; 90 State Street, STE 700 Office 40, Albany, NY 12207.
NOTE: this opt-out does not apply to the class action waiver in Section 15(B) above; even if you opt-out of arbitration, you agree that no class actions in court will be permitted.
- Miscellaneous. These Terms contains the entire understanding and agreement between you and Company concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. These Terms cannot be changed orally, nor may these Terms be modified except as expressly authorized in these Terms. If any provision of these Terms is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and these Terms shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision that must survive in order to allow us to enforce its meaning shall survive the termination of these Terms. No action arising out of these Terms or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of Company to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision.
- Terms Pertaining to Certain Third Party Content, Data and Information Providers and Mobile Application Platforms.
21.1 AP Material. By accessing the Services, you specifically acknowledge and agree that (i) Associated Press text, photo, graphic, video and/or audio material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium; (ii) No Associated Press materials nor any portion thereof may be stored in a computer except for personal and non-commercial use; (iii) The Associated Press will not be held liable for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing; (iv) The Associated Press is an intended third party beneficiary of these terms and conditions and it may exercise all rights and remedies available to it; and (v) The Associated Press reserves the right to audit possible unauthorized commercial use of AP materials or any portion thereof at any time.
21.2 Mobile Applications. If you access the Services through a mobile application or other type of third party platform, the applicable End User License Agreement for the platform through which you downloaded the mobile application may apply in addition to these Terms and you agree that you are subject to such terms in addition to these Terms.